Lord Bassam of Brighton: My Lords, I entirely agree with my noble friend. Funding is linked to accountability and is one on which the Home Secretary has made a clear commitment to consulting in the future. That will ensure that police forces, however they are organised, are well funded, so that people can rely on them to deliver the services that they want.

Lord Pearson of Rannoch: My Lords, will the Minister explain why we stay in the common agricultural policy when it not only creates the difficulties raised by this Question but also kills millions—mostly children—in the developing world? Why do we not just organise our agriculture in our own interests and those of the least fortunate people on the planet, without passing our hard earned billions through the corrupt filter of Brussels?

Lord Warner: My Lords, I am sure that the whole House pays tribute to the work that my noble friend has done in the interests of carers during the year. I am aware of the ITN campaign, and we welcome the higher awareness of carers' issues that it achieves. With regard to a carers tsar, my noble friend will be aware that we already have a number of national clinical directors—for example, for social care, older people and disease-specific groups such as cancer and diabetes—who pay great attention to the issues of carers. As part of the White Paper follow-through, we will encourage councils and PCTs to have a carers lead to develop services locally.

Lord Howell of Guildford: My Lords, although we on this side strongly favour the Bill, it would be a pity to let it now pass without a few comments on its historic significance and on some of the implications. I hope that the Minister will want to join in with a few comments. The Bill legitimises, at least in this country, our agreement to the accession of Bulgaria and Romania to the European Union. The plan is that that should take place in January next year, which is only 12 months away—the Bill provides for the possibility that there might be some delay, as indeed there might be, because the schedule is obviously extremely demanding.
	Allow me to note one or two implications and facts in relation to the Bill. First, the last big accessions Act, in May 2004, brought in 10 new countries, including eight from eastern and central Europe. In the 17 months that followed, some 293,000 workers from those new member states registered here. It is extraordinary how well the nation, or society, has succeeded in absorbing that colossal number. In that period, we have probably absorbed about three times the size of the entire Huguenot arrivals at the end of the 17th century. It has been one of the biggest and swiftest immigrations ever into this country—into which there have been immigrations for well over 1,000 years—and yet it has been absorbed in a way that has hardly raised any social comment or disruption anywhere. It has been one of the greatest inflows of modern times.
	The nation can therefore pat itself on the back as we give the Bill its Third Reading. However, I am not sure that I extend such generosity to the Government, because their estimate of some 13,000 workers registering—which is not the same as immigrants for settlement, which might come later—was, to put it mildly, wide of the mark. Anyway, a very large number—some 300,000—have disappeared or settled into industries across the country. While the availability of the facts are not at all good, and there is a case for more illumination from the Government, we think that those immigrants have gone largely into the construction and service industries, such as restaurants and plumbing—the proverbial Polish plumber has featured on the scene.
	My party colleagues and I believe that all of this has been of considerable benefit to the national economy, as will any additional flows that result from the accession of Bulgaria and Romania. Why has this huge flow occurred? Why has Britain proved to be the obvious destination of choice? One reason was embodied in the previous accession Bill—namely, that Her Majesty's Government decided against any restrictions during the transition period, both before and after accession by the 10 countries involved, whereas most other EU countries decided to have restrictions. Indeed, 10 of those countries are now reviewing whether they should keep the restrictions, which will lapse if they are not renewed on 1 May this year. I hope that there are many other reasons why this country proved to be so attractive, but a clear reason was that restrictions were in place elsewhere. Presumably, lifting them might make some difference to the pattern of flows.
	This is an important moment for Bulgaria and Romania. We all wish the negotiators well—those seeking to make a place for those countries in the European Union at a time when the EU is undergoing considerable transformation and is seeking new directions after the collapse of the ambitions for a detailed new constitution. We hope that Parliament will be kept very well informed as the flow of workers from Bulgaria and Romania who register here builds up, as it will. Indeed, I hope that we are better informed than during the previous round of accessions. We hear many figures and have many debates about non-EU immigration and worker settlement in this country, but my impression is that the availability of figures on the pattern of movements within the EU has not been so good. We might benefit from closer monitoring and more regular reporting to Parliament, which was the idea behind some of the amendments that we moved at an earlier stage.
	These newcomers are an asset, as has been the case with most of the migrants who have settled here through the centuries. We welcome the Bill, as we welcome the skills that the new migrants bring, but it would be nice to know that Parliament will be kept closely informed about what happens over the next one, two, three and five years as these countries find their place inside the Union.

Lord Lea of Crondall: My Lords, I am sure the whole House will appreciate that the Minister took this opportunity to pay a very generous tribute to the late Lord Chan, whose last contribution in the House was his remarkable speech on the Second Reading of this Bill on 6 December 2005. We are glad that the noble Baroness has informed us today of her important meetings with the Chinese community, following up the questions raised by Lord Chan in that debate. As my noble friend has pointed out, his intimate knowledge of the Chinese community brought a quite unique and invaluable experience and, on that occasion, a clear explanation of some of that community's anxieties about aspects of this Bill—anxieties which we all hope can be relieved. That link was, of course, far from being his only contribution to this House, but it is one we can salute here and, indeed, one which can, we hope, continue in some way as part of his legacy.

Lord Williamson of Horton: My Lords, I shall support Amendment No. 1 when it is moved, but like the noble Lord, Lord Lea of Crondall, I have looked back at the Second Reading debate on 6 December, and in particular at the speech of Lord Chan, to which reference has been made. In his modest but forceful way, Lord Chan—whose recent and sudden death we all, in particular his friends among the Cross Benchers, so greatly regret—raised points of importance to the Chinese community on appeals and the removal of settlement rights under the five tier points for the system.
	For me, it is a matter of great satisfaction that the Minister has recognised the importance of the points raised by Lord Chan, continued the contacts with the Chinese community and is willing to see whether solutions can be found, there is therefore a welcome continuity, despite the sad death of our colleague, Lord Chan.

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 1, I shall speak to the other amendments in the group. This group of amendments has been proposed in response to concerns and suggestions raised during Grand Committee in your Lordships' House and elsewhere. I am grateful to all noble Lords and to members of different stakeholder groups who have made representations to me. As noble Lords will see, these amendments will confirm in-country rights of appeal against variation decisions, as is the case under existing legislation.
	We maintain that it is important to create an effective single appeals system. Throughout the passage of the Bill, there has been a great deal of agreement in your Lordships' House that that is an important principle. We have therefore created within this group of amendments a new power to make removal decisions in order to achieve this.
	Under these provisions, appellants will be able to contest variation and removal decisions at the same appeal, while continuing to remain in the UK with continuing leave. The amendments fit into the wider strategy of implementing an end-to-end migration process and will incorporate other elements of the five-year strategy. As your Lordships will know from this legislation, that includes the introduction of e-borders, for example, which will help us to know when people comply with the terms of their leave.
	I will briefly speak to each amendment so that noble Lords can see how they fit together. Amendments Nos. 1, 2 and 3 are part of a package of government amendments which confer in-country appeal rights on a broad range of applicants. First, the existing right of appeal against decisions to refuse to vary and to curtail leave will be retained by virtue of Amendment No. 1. As a result, it is no longer necessary to confer a separate right of appeal against variation decisions for specific categories of leave. Clause 1(4) is therefore deleted.
	Our intention behind these amendments is to allow variation and removal decisions to be made simultaneously and for both decisions to be contested at the same appeal. These amendments will ensure that variation appeals fit into the wider strategy of implementing the end-to-end managed migration process.
	Amendments Nos. 4 and 5 are consequential to the package of provisions that we have introduced to ensure that in variation, curtailment and revocation cases there should, so far as is possible, be a single in-country right of appeal at which the enforcement decision can also be considered. As a result of the retention of variation and curtailment appeals by virtue of Amendment No. 1, it is no longer necessary to allow people to raise previous decisions as grounds for appealing against a removal decision. Therefore, Amendment No. 4 removes this provision. Amendment No. 5 makes a consequential change.
	Amendments Nos. 12 and 13 provide continuing leave for people who are bringing an appeal against refusal to vary, curtailment and revocation of indefinite leave. This means that people will be able to exercise an in-country right of appeal and benefit from continuing leave during that appeal. Amendment No. 12 corrects a technical problem with the existing continuing leave provision in Section 3C of the Immigration Act 1971. Under the current version of Section 3C leave continues while an appeal could be brought without specifying whether to trigger an extension of leave; the appeal must be brought in the UK or otherwise.
	Amendment No. 12 inserts a condition that leave will be continued only where appeal may be brought in the UK or where such an appeal is pending. The change has been made to make it absolutely clear on the face of legislation that leave will be continued only where an appeal against a decision to vary leave could be brought in-country.
	Amendment No. 13 is designed to ensure that the continuation of leave provisions provides an appropriate period of extended leave for applicants who are challenging decisions to curtail limited leave or to revoke indefinite leave to remain. It will bring the position for these appellants into line with the present position for persons who are challenging a refusal to vary leave. At the moment, leave is continued for appeals against refusals to vary decisions by Section 3 of the Immigration Act 1971 whereas for curtailment and revocation decisions leave is continued by Section 82(3) of the Nationality, Immigration and Asylum Act 2002.
	The provisions of Section 82(3) of the 2002 Act do not extend leave beyond its original expiry date. Therefore, it is theoretically possible for a person's limited leave to expire midway through the currency of their appeal. To address that problem and for the benefit of coherence, Amendment No. 13 will bring all of the continuation of leave provisions into the same format and will extend leave in curtailment or revocation cases during the period in which an appeal against such a decision could be brought or is pending.
	Amendment No. 14 removes Clause 13. Clause 13 would ensure that someone who has complied with the terms of their leave would not be liable to prosecution under Section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer. It was introduced in response to concerns that we were enforcing illegality on people by virtue of Clauses 1, 3 and 11. However, the amendments which have been tabled at this stage will provide for continuation of leave during any appeal against a variation, curtailment or revocation decision and, therefore, Clause 13 is no longer relevant.
	Amendment No. 15 provides an order-making power to limit the scope to certify clearly unfounded human rights claims under Section 94 of the 2002 Act. This would mean that where a type of leave was designated it would not be possible to use Section 94 powers in relation to variation appeals. We believe that it is important to take firm action against those who clearly make unfounded claims which is why the power to certify was extended, as noble Lords will remember from that piece of legislation, to variation appeals in the 2004 Act. Introducing the order-making power does not change that position but we consider that the type of leave a person has before making a clearly unfounded claim may be relevant to whether they should be able to bring an in-country appeal. No decisions have yet been reached on what types of leave, if any, fall into this category but an order-making power ensures that we can seek Parliament's early approval if we decide that some types of leave should confer an in-country appeal right even where a person is making a clearly unfounded claim to extend his stay.
	Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal.
	During the single appeal against both decisions, appellants will have continuing leave and may remain in the United Kingdom. I hope noble Lords will welcome this group of amendments. I beg to move.

Baroness Anelay of St Johns: My Lords, I welcome these amendments and support them. They achieve the Government's original aim of a one-stop appeal process. They also meet the concerns we on these Benches expressed in Grand Committee; that the appeal should be in-country and that the people's leave should be preserved on the same terms and conditions until that appeal is finally determined. We thus avoid the unacceptable result of the original drafting of Clause 1 whereby people would automatically have been turned into overstayers with all the damaging consequences that could have had. We also avoid the necessity for the artificiality of the Clause 13 situation that was introduced in another place as a rather list-ditch attempt to save the Clause 1 procedure.
	So, I am certainly grateful to the noble Baroness for the work she has done between Grand Committee and Report stage. The Government have fully met the commitments the noble Baroness gave in Grand Committee. On that more pleasant note, I am not sure whether others have had the opportunity to do so since last Wednesday, but perhaps I may congratulate her on being elected Peer of the Year by Channel 4 and the Hansard Society.

Baroness Ashton of Upholland: My Lords, I am unsure about whether to be grateful to the noble Baroness, Lady Anelay, for raising the award, yet I am extremely grateful for all of those kind words. I feel totally buttered up and ready for this afternoon, especially by the noble Lords, Lord Dholakia and Lord Avebury, who I believe were seeking to do that in order to force me subsequently to do things which I cannot. However, there may be the odd little trick up my sleeve for the rest of the day.
	The noble Lord, Lord Dholakia, asked about the 10-day grace period. Effectively, the answer is: yes, people who are not detained have 10 working days from the date that they are notified of an appealable decision, if they are in the UK, in which to lodge an appeal. During that period their previous leave is continued; so, people currently have 10 days' leave without lodging an appeal. That will continue under these arrangements. The noble Lord also asked if there were any new powers in the amendments, other than the one which I mentioned. No, there are none.
	In terms of what is clearly unfounded, we have no decisions yet. We want to think about that and have used that particular way so as to come back to Parliament and address the issue properly. The policy behind it recognises that some people, in some circumstances, should have an in-country right of appeal, even if they have quite clearly made an unfounded claim. We need to work through the details there. It may well be that children will be an example, as the noble Lord already indicated, but I am not yet in a position to say whether any groups have been determined. As soon as I am able to, I shall bring that to your Lordships' House.

Baroness Ashton of Upholland: moved Amendments Nos. 2 to 3:
	Page 2, line 1, leave out "that Act" and insert "the Nationality, Immigration and Asylum Act 2002 (c. 41)"
	Page 2, line 11, leave out from "refugee" to end of line 12.
	On Question, amendments agreed to.
	Clause 3 [Grounds of appeal]:

Baroness Ashton of Upholland: moved Amendments Nos. 4 to 5:
	Page 2, line 20, leave out subsections (1) and (2).
	Page 2, line 32, leave out "subsection (3)" and insert "section 84(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (grounds of appeal)"
	On Question, amendments agreed to.
	Clause 4 [Entry clearance]:

Lord Avebury: My Lords, I hesitate to destroy the harmony which has been enjoyed on previous amendments and begin by expressing our gratitude to the Minister and her officials for the briefing which they gave us last week on the points system. The knowledge that the principle of having lists of approved employers and academic institutions whose offer of jobs or study would be treated as conclusive is a great improvement on the present situation, where subjective judgments on those matters are taken by the entry certificate officer. As we understand it, the ECO will not be able to refuse an application on the grounds that a person may not comply with the immigration conditions since his offer, if from an academic institution or employer, will be treated as satisfying that particular requirement.
	However, we still have concerns since we do not consider that the prevailing culture of disbelief among entry certificate officers will vanish overnight. There is still scope for discretion to be used against the applicant, particularly in assessing his ability to support himself without recourse to public funds. It was acknowledged, in our discussion last week—which might have gone on much longer had it not been for the interruption, halfway through, of the Division Bell—that much of the detail still remained to be worked out, particularly on how numerical values would be assigned to attributes and how that would be calculated.
	The person is assigned points for the rating of the sponsor, availability of funds, previous compliance with Immigration Rules, and so on—according to the notes that I took at the time. It was accepted, for example, when we put it to officials, that a person who had never been in the United Kingdom before would be given zero points for compliance with the immigration laws, so he would need to score much higher in the other factors to reach whatever threshold of points is specified to be given entry clearance. An undesirable side-effect of that may be that someone with plenty of money who intends to study in a class B college could gain an unfair advantage by coming here for a brief visit before applying as a student and getting some points to offset the lower rating of the college at which he intends to study.
	We are also concerned because we must judge the Bill as it stands and have no opportunity to deal with the present system, which is so catastrophically unreliable, as everyone acknowledges. Dozens of recommendations for putting it right have been made by the independent monitor. They have lain on the table, ignored, from one report to the next and the Government have not yet published the final report of the independent monitor, more than two months after it was submitted. They arranged that there would be no monitor in post all the way through Second Reading and Grand Committee in your Lordships' House. How can we trust, not the Minister but the Government, who have failed so conspicuously to run the existing scheme fairly and effectively, to produce the new one to meet our needs, to be consistent, reliable and economical?
	We have seen only the headlines of the points-based system; the full scheme will be published long after the Bill has received Royal Assent. That is the political equivalent of the classic 18th century scam of a stock market flotation of a company carrying on an undertaking of great advantage, but no one is to know what it is. Parliament should not be asked to sweep away appeal rights without even a roll-out, let alone the thorough testing of the processes that are said to make those rights unnecessary. We are now being asked to approve the points system for visitors and students on the basis of a seven-page PowerPoint presentation, plus whatever we managed to scribble down when the Minister and her officials were talking last week.
	We note that the consultation on the paper, Selective Admission: making migration work for Britain, finished on 7 November last. The Government are to publish the results shortly, but the moles from the IND tell us that that means as soon as the Bill gets Royal Assent—probably around Easter. I notice the Minister shaking her head and I should be grateful if she corrects me when she comes to reply. It is less than encouraging that the Government are so keen on preventing us seeing the full details of the points scheme while there is some possibility of doing something about it during the Bill's remaining stages. That is why we tabled Amendments Nos. 76 and 77, which would defer the coming into operation of Clause 4 until sometime after 2010, by which time I hope that we would have had an opportunity to make a full evaluation of the points scheme—even, in the interim, putting right some of the many things that the monitor has recommended that we do about the existing unfair and chaotic asylum entry system.
	The idea of sponsorship by an approved academic institution or employer and the elimination of entry certificate officers' discretion to challenge acceptance of a student or worker could be implemented by a change of the Immigration Rules. That would eliminate a large number of the refusals that are overturned on appeal, especially those of students as described by the monitor, who said in her report of February 2005:
	"The overwhelming majority of refusals are made for reasons which address the requirements of the Immigration Rules that visitors and students (who are not studying at degree level) . . . should not intend to work and that students should intend to follow their course".
	Why have the Government not addressed that problem by amending the Immigration Rules so that the number of refusals—hence the number of appeals—in respect of bona fide colleges could be reduced accordingly? They might then be able to save a great deal of money, not only on the appeals themselves, but by continuing the part-time appointment of Ms Lindsley, who is doing a great job, rather than replacing her with three full-time workers, as I understand they are doing. As I have already said, Ms Lindsley came to the end of her term of office on 1 December. Presumably she submitted the final report before then. Why has that report not yet been published?
	Before I sit down, I should briefly refer to our Amendment No. 6, which allows the Secretary of State to prescribe purposes for which the rights would be restored. It does not require the Secretary of State to do anything unless he thinks that necessary in the future. We still believe that chickens might come home to roost when a totally unexpected but perfectly reasonable case is made for some group to have its rights of appeal restored. If not, nothing is lost by having the provision in the Bill. I beg to move.

Baroness Anelay of St Johns: My Lords, I speak to Amendment No. 9, which is in my name and grouped with these amendments.
	The Government's plan to abolish appeals in non-family cases was in the general election manifesto. It did not exactly shout out that students would have their appeal rights removed. I suspect that the implication of the text of the manifesto was not crystal clear to the public, but I accept that the provisions in this Bill accurately apply the commitment in the manifesto. As such, therefore, I have from the beginning acknowledged that the Salisbury convention means that I should not, and I would not, do anything to undermine the operation of the provisions of Clause 4.
	Debates in Grand Committee showed that there was opposition on all sides of the House to the Government's plans to abolish appeals for those who apply out of country for visas to come here to work and study. I expressed my concern both on Second Reading and in Grand Committee about that abolition of a right of appeal and its replacement by a system of administrative review. In Grand Committee, the Minister offered to take time to explain to noble Lords how the Government expected the new administrative review procedures to work and, in particular, how they would try to remove subjectivity from the decision-making process of the entry clearance officer. I believe that the Minister has met that commitment with good will and energy.
	I am grateful to the Minister for arranging to meet my honourable friend Damien Green and myself last week, so that IND officials could make a presentation of how they hope the new points system may work. The noble Lord, Lord Avebury, has just referred to that PowerPoint presentation. I was impressed by their optimism and determination to establish a system that is both fair and accessible, and one that should try to remove from the equation that subjectivity in decision-making. I do not question their professionalism and dedication—far from it—but there are significant questions that remain to be answered.
	What is the timetable for the roll-out of the application of the various tiers of the points system? What is the number of staff that will be involved in the retraining of entry clearance officers and when will that training be completed? Will staff be trained on a country-by-country basis or on the basis of point of application? What are the plans for monitoring the quality of the initial decisions? If somebody objects to the results of that initial review and requests a review, how long might they have to wait for the outcome? What information will be given to them as to the reason for upholding or overturning the original decision? How will the Government raise awareness of the new system among small employers, who will not have access to the advice systems that may be put in place by affected/effective organisations such as UUK? Here I add my appreciation to UUK for all the hard work that it has done in briefing noble Lords on all the issues throughout the Bill process so far.
	How will a proxy accreditation scheme for small business work? The Government say that there will be a carrot-and-stick approach to the points rating of employers. How will they determine the initial rating of employers? What information will be used and how reliable will it be? How will the new system deal with complex cases and high-risk areas such as poor track records or new sponsors? Those questions could go on for ever—it is tempting to do so—but I think that I have put there more than my baker's dozen which I had originally intended.
	I realise that the results of the consultation will be published soon, as the noble Lord, Lord Avebury, said; one hopes it will be within the next month. It is vital that this House should consider the results of that consultation before Third Reading. It would therefore be helpful if the Minister could say whether she agrees that it would be best if the House had that opportunity.
	I have reflected carefully on the work carried out by the Government on the new system of administrative review. It is important for everyone that it should work well. It is also important for Parliament to have the guarantee that it will have the opportunity to hold the Government to account for the operation of the administrative review system. It is in that spirit that I have tabled Amendment No. 9, which I hope will be seen as a constructive move forward. The amendment requires the Secretary of State to lay a report before Parliament within three years of Clause 4 being put into effect, a report that would have to set out the details of what system of administrative review has been set up and how effective it is, taking into account the number of cases and the number of applications for further review after the initial decision. As ever, I am not wedded to the drafting of that amendment, but it is offered in a constructive spirit.

Baroness Warwick of Undercliffe: My Lords, in speaking to Amendment No. 10 in this group, I declare an interest as chief executive of Universities UK. I cannot hide my disappointment that the Government have not proved willing on this occasion to listen to our concerns about Clause 4, which will abolish the right of appeal in entry clearance cases. No substantial improvement has been made so far to this aspect of the Bill. As the noble Baroness, Lady Anelay, said, there is a manifesto commitment in play which of course ties the hands of this House. But it does not remove the possibility of making real improvements to the Bill.
	As we know, the quality of initial decision-making is currently poor. With respect to students, about 34 per cent of applications are initially refused. Of those who appeal, one in four is successful. In plain English, entry clearance officers get decisions wrong with alarming frequency. The Government have argued that the new points-based immigration system will solve the problem. It appears, however, that Ministers are confident that this will happen overnight because it is clear that the Government intend to remove the right of appeal as soon as the points-based system is in place.
	The noble Lord, Lord Dholakia, has tabled Amendments Nos. 76 and 77 in this group, which would create an opportunity for the system to be tested before appeals are abolished. I wholeheartedly support that approach. Under the current scheme, there will be no opportunity to test the Government's assertion that the new points-based system will work and will improve the quality of decision-making. Although we all hope that that will be the case, there are reasons to doubt that it will, which I have set out in a detailed letter to the Minister this week.
	As the noble Lord, Lord Dholakia, said, the details of the scheme are yet to be published. I hope that we will see it before Third Reading. But from what we know, it is clear that there will remain an element of subjectivity in the process. As Tony McNulty, the Minister, has said in another place,
	"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure. We do not know how points will be allocated and what weighting will be given to different criteria".—[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
	There remains the fact that errors frequently occur under the current system, as a result of entry clearance officers failing to follow the existing rules. How can the Minister be confident that that will not happen under the new system? I hope that better training and resources will improve things, but I remain unconvinced that the new points-based system will be a magic-wand solution. If the Government are wrong and errors still occur, or it simply takes some time to get the system working well and train the people who are to operate it, those who lose out will have no opportunity for independent redress.
	That is particularly disappointing because the Minister's own department, the Department for Constitutional Affairs, has made it clear that the Government are committed to providing independent adjudication where decisions taken by government officials affect people's lives. The July 2004 DCA White Paper, Transforming Public Services: Complaints, Redress and Tribunals, stated:
	"in a democracy ruled by law, and under a government committed to high quality and responsive public services, simply appealing to a department's sense of fairness is not, and never has been, enough".
	I hope my noble friend at the Dispatch Box will make it clear on the record that she agrees with the statement; I do. If she does agree, can she explain how it is consistent with the Government's intentions on entry clearance?
	There is still time for the Government to achieve consistency between that statement and the entry clearance system. Amendment No. 10 would create an opportunity to do just that. It provides for the Government to appoint a person or body independent of the decision maker with power to review decisions in individual cases. Given the DCA's commitment to independent adjudication, I have suggested that this scheme should have the endorsement of the Lord Chancellor. I have not sought to bind the Government's hands on who should take responsibility for such an independent review and, no doubt, the Government can improve on the drafting. But in the five-year plan the Government have already committed themselves to producing a scheme for administrative review. All I ask is for that system to be given a statutory basis, for the principles to be set out in secondary legislation, and for it to include some element of final independent arbitration.
	I know that my noble friend has been thinking about the scheme and I am most grateful for our conversations about it. But I would appreciate it if she could confirm several points: that administrative review will be available to all those refused visas; that entry clearance officers will provide written reasons for refusing visas and invite both applicants and their sponsors to make representations; that the review should allow for the clarification of existing evidence; that responsibility for conducting the review will rest with the regional tier of entry clearance staff; and, finally, that the independent monitor will sample review cases and monitor procedure in relation to students. The reason I ask for these specific commitments is that so far we do not have any concrete proposals for the review, which was promised as part of the five-year plan and we know that the administrative review process that exists under the current system does not deliver results.
	I believe the record will show that this House is well aware of the problems with the scheme the Government have set out. The Minister still has an opportunity to listen to those arguments and to make appropriate changes. At this point I should like to thank the noble Baroness, Lady Anelay, and the noble Lords, Lord Dholakia and Lord Avebury, for their determination, tenacity and continuing support for this approach. The Minister has a reputation in this House for listening and delivering real improvements to legislation. In speaking to Clause 1, all those who intervened complimented her on the fact that she was so willing to listen. Notwithstanding all of the constraints this House is under in view of the manifesto commitment, I hope she will take the opportunity now before us and bring back some concrete proposals before Third Reading.

Baroness Carnegy of Lour: My Lords, I am not sure whether the amendments tabled by the noble Lord, Lord Dholakia, to postpone this clause until January 2010 fall within the Salisbury convention. I do not know whether the Minister has it in her brief to remark on it. But obviously we must pay attention to the convention which, although questions are asked about it, still exists.
	This is a very important subject. The effect of Clause 4 as it stands will be fairly devastating for universities and for the country because it is clear that a great many students would not have come here had they not won an appeal. Some now play a notable part in our economy. Some of them have stayed, and are now working here. Some plan to come back. They have all got to know this country, and may come back in the future. We have been over all these arguments, and the Minister knows well the importance of the subject.
	The noble Baroness, Lady Warwick, has put down Amendment No. 10, and is suggesting there should be an independent person to adjudicate on cases. I do not know how many cases there would be, what size this operation would be, or whether it is possible. Doubtless the Minister will tell us about that. It is certainly worth considering.
	My noble friend Lady Anelay has spoken to Amendment No. 9. Although it would do less to help, it would improve the situation, because there would be a chance for Parliament to know within three years just what has been going on. Three years can be quite a short time with something like this. It would be very helpful if there could be a report to Parliament to tell us what has happened, how many people have applied, how many have had their applications refused and so on. I hope the Minister will consider that carefully. If I were in the Government I would like to accept that amendment, as it is a sensible and workable solution. It does not solve the whole problem, though, and we will be interested to hear the response to the amendments of the noble Lord, Lord Dholakia, and those of the noble Baroness, Lady Warwick.

Lord Brooke of Sutton Mandeville: My Lords, I declare an interest as Pro-Chancellor of the University of London, though I am not speaking in any sense on its behalf. I was unfortunately unable to attend the briefing given by Universities UK yesterday afternoon, by virtue of a separate association with the National Lottery Bill, but I listened with care to what the noble Baroness, Lady Warwick, said this afternoon.
	I recognise the impact of the Salisbury convention alluded to by my noble friend on the Front Bench, and indeed by my noble friend Lady Carnegy. One of the ironies of the Salisbury convention in this context is that it was introduced by the third Marquess of Salisbury and renewed by the fifth only after the Second World War. When the third Marquess of Salisbury introduced it, it was during a period when a great deal more of the world was painted red than is the case today.
	I shall of course give the benefit of the doubt to the Minister, who enjoys great respect in the House, as has already been alluded to, but I shall maintain unease until I hear her reply. I hope that I shall feel less unease after she has spoken.

Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have participated in the debate. I begin where the noble Lord, Lord Lewis of Newnham, ended. I would like to enhance our reputation. The point that was made by my noble friend Lady Warwick on the number of decisions that are overturned on appeal is the reason and the driving force for the new system that is being proposed, which is a much better proposition. My role, notwithstanding any conventions, is to try to convince your Lordships' House during the passage of the Bill that we have that right.
	One of the ways I want to do that is to make a promise. The promise is specifically directed at the noble Lord, Lord Avebury, but I believe that it will be welcomed by your Lordships' House. I have discussed it very briefly with the noble Baroness, Lady Anelay, and I know that she will welcome it. As noble Lords have indicated—I think that the noble Lord, Lord Avebury, used the word "shortly"—the response to the consultation will be published. I give the commitment that Third Reading of the Bill will not take place until that is published and noble Lords have had at least a few days to consider it. I do not have a publication date yet; my pay grade is not sufficient to be given such an honour, but as soon as I have one I shall make sure that noble Lords know it. If for some reason the publication were delayed, we would move the Third Reading date accordingly. The purpose of that is to achieve precisely what noble Lords want, which is to look at the consultation and to have the opportunity to meet myself, my honourable friend Mr McNulty and officials. I was grateful for the thanks that noble Lords have given for the meetings that officials have held with them over the past couple of weeks.
	One should also understand that the stakeholders involved in this—I refer not only to universities but also to other education institutions and employers, large and small—played a critical part in designing the new system. They will have a continuing role to play in making sure that we get it right. Noble Lords rightly mentioned the difficulties that arise with the current system. I am sure that there are wonderful entry clearance officers and entry clearance managers and I know that noble Lords do not mean to imply that they are not, but I accept that mistakes are made and that judgments are arrived at. Largely because of the judgemental nature of the way in which decisions are made it has been important to have an appeals process. That has proved itself through the number of successful appeals. But that is not the system that we will be dealing with. The system will be specifically designed with all those factors taken out.
	One issue that has been raised continuously with me by representatives of Universities UK—I am always sorry to disappoint my noble friend Lady Warwick, despite my efforts to meet her concerns—members of the Chinese community and others, has been considering the subjectivity of intention to study. That will not be in the new system, because the people who will decide that someone is going to come and study in this country will be the institutions. They will determine by giving someone a place that they are qualified and able to study and that they meet the requirements, just as they do with students here.
	The other issue that I am often told about is that people supply many pieces of information, largely to give financial security to entry clearance officers in the sense of giving them all sorts of information that they might need. Without pre-empting what will happen, we hope that the system will streamline that process totally, so there is a transparency regarding what kind of information is needed for the individual who is seeking to apply either to come to this country as a student or who has a job offer and is coming in as a worker, so that they know what they need to supply in the points-based system and they understand the importance of supplying it.
	I apologise if the seven-page PowerPoint presentation did not do it for the noble Lord, Lord Avebury, but I have sought to get people—whether Members of your Lordships' House or people outside—to understand that we have to forget the existing system and all that we loved or hated about it and think about a transparent system at which any applicant can look and work out how many points they will need and how they will gain them, and that the same system is being looked at by an entry clearance officer at the point at which the applicant is seeking to have the application ratified and to come into the country.
	That transparent system will do a number of things. It will prevent people speculatively trying to come into the UK, which will have an impact, because it will show people what they will need. It will enable the institutions and employers to play a far greater role. We are talking about how to make sure they have a positive relationship and we are discussing presently with Universities UK what role the institutions might play in querying if there is an issue. It will enable people to see at a glance precisely what information is required, so we do not get the bundles of paper that lead to the issues and problems that have been raised.
	When I talk to the officials at the Home Office—noble Lords must remember that I am not a Home Office Minister, which is sometimes an advantage in this process, because I am not part of it and can therefore ask more difficult questions—I am clear that here is a system that sounds infinitely better for everyone; not least our hard-pressed entry clearance officers in terms of being able to understand and see what will happen. It is in that context that we began to think about what kind of mistakes or issues we would need to take forward. It is not an appeal against someone's judgment; it is looking at what might be the issues and problems.
	I invited all noble Lords who took part in our deliberations in Committee or whom I have met outside and the universities and other institutions to come forward with examples of decisions that have gone wrong, which might be decisions that could not be addressed by what I have described as the administrative review. I am still waiting to find one that either would happen or could not be dealt with.
	When we looked at what we need to do to make sure that things do not go wrong, my concern was that there was still of course the possibility of human error. Even with a system that has taken out huge amounts of judgment—I will talk about the final judgment in a moment—we still have the potential for someone to misread a piece of information; to write down the wrong number for the points, and so on. What could we do that would create a better system than the one we have currently but would recognise that that could happen?
	Noble Lords who have dealt with appeals will know that they can sometimes take up to two years. I want a system that means that a student, for example, is not prevented from coming to their course because someone read a number wrong. We need to design an administrative review system that has a number of elements: first, that it is free, which it will be; and secondly, that it is speedy, which it must be. We have asked universities and employers what is an appropriate length of time—I am talking days and weeks; certainly not months—to make sure that we can handle an assumption that everyone who is refused will call for a review. Therefore the time period has to be manageable within the system but the system must make sure that no one misses out on either a job offer or a university or college place because it has taken too long. How do we make sure that that is done in such a way that people have transparency?
	Any decision that is made that says that an applicant will not be entitled to come must give within it—the noble Baroness, Lady Anelay, asked about this point in her opening remarks—the specific reason why the applicant has have been turned down. That enables the applicant, or the institution if it plays a role, to say, "Hang on a minute, you have read that wrongly", or, "You have misinterpreted that information". The review is done of a very specific, relevant piece of information or of a fact that can be looked at.

Baroness Ashton of Upholland: No, my Lords, the independent monitor does not play a role in this. The independent monitor is much further up the system. He will be in a full-time position, looking across a sample of cases. We talked about this a lot in Committee. He will perhaps look at particular countries where there have been particular issues. I am describing a process— which we still have to work out and which is not set in concrete—where someone more senior in the area looks at whether someone has misread bank account details or miswritten the number of points. We are talking about a very clear administrative system. The individual can reapply; there is nothing to stop anyone reapplying.
	That is the kind of process that we seek to put in place to address precisely the questions that will be raised, bearing in mind that the subjectivity has largely been taken out. The one area where we still have to have a discussion—and I am grateful to my noble friend, because she mentioned this area in her letter this week—is where you believe that the documentation before you may be forged, or something of that nature, in which case one might say that professional judgment has a part to play. That is what my honourable friend Mr McNulty referred to when he said that you can never 100 per cent rule things out, because you have to consider whether the information before you is forged or accurate. We have to think about that. We are talking about an administrative review, not an independent anything. It is not an appeal by the back door. I will not pretend to your Lordships that that is what I am looking for. I am looking for a system that will provide a greater and better impetus for people to come to this country as students or workers; I am looking for a system that is much more transparent and makes it much easier for people to understand what they have to provide to do so. The system should give them greater opportunities to participate in education or in work in this country; that is the ambition behind it.
	I will now address the specific points that noble Lords have raised. The noble Baroness, Lady Anelay, gave me a series of questions. Some of them will be answered when the documentation is available, but I will seek to deal with those questions as best I can. We have a five-year strategy to roll this out in a phased way, so I do not have a specific timetable at this point of how it will come in. The idea is to phase in the different tiers over time. The noble Baroness is absolutely right that we need to think about the number of staff that we need for training. Part of the design is how we make sure that we have got the right kind of training in place; we absolutely do not underestimate the importance of that. Whether we take a country-by-country approach will be part of looking at what will work best. We will use a phased approach, but we need to think about how to do that—whether it should be country by country, or all of one tier.
	On the quality of initial decisions, I hope that I have given a flavour of looking for transparency and objective criteria so that people can understand the process effectively. We are looking at the details now so that we can make sure that people get the information in a clear, objective and transparent way—for example, if they are refused. The noble Baroness, Lady Anelay, raised the issue of small employers, on which we are consulting. Not surprisingly, members of the Chinese community have raised it with us, because they represent a large number of small employers. We are looking carefully at how to ensure that we involve them appropriately and how we make contact and keep contact with them. That is much easier with big employers who have a number of people coming through and where we will be able to develop personal contacts for them. We need to make sure that we have got that right. That also applies to an accreditation system for small businesses.
	We want to ensure sure that the basic procedure is in place so that we can obtain the initial ratings. We will aim to have more compliance checks while people get their ratings right. There might be a provisional rating that will then come into force as we have more compliance checks. I am not seeking to prevent people from participating or to discourage or discriminate against them because they do not have a long track record. The use of compliance checks is to help them.
	I can tell my noble friend Lady Warwick that the administrative review is available to anyone who is refused. Written reasons will be given, as I have indicated. There is no regional tier involved. Such regions are huge areas of the world, but my noble friend and I can continue to talk about this. I have indicated that the independent monitor will carry out a sampling exercise.
	I have talked at some length about the administrative review and, sneakily, I thought that my noble friend would start quoting my department at me. I have the quotation, too. The noble Baroness quoted section 3.13. Section 3.12 states:
	"The first and most direct remedy is to dispute decisions directly with departments and agencies".
	So I stand by what we said in 3.13. The noble Baroness will know that I am responsible for tribunals within my own areas of policy. We are saying that we need to make sure that people dispute with departments and agencies. We are doing that and the administrative review enables it to happen. There are still rights of appeal on human rights and race relations grounds; there is a route to judicial review; there is a level of independent scrutiny by the independent monitor; and the noble Baroness may wish to note that the document states on page 15:
	"Both the public and private sectors need to create and maintain suitable and cost effective means of redress".
	Noble Lords will remember from the debates at Second Reading that we are seeking to achieve a better use of resources across all our work on asylum, immigration and managed migration. It is important that we achieve that.
	Turning briefly to the amendments that have been spoken to, I do not think that the noble Lord, Lord Dholakia, will be surprised that I do not accept Amendment No. 6. However, I am interested in Amendment No. 9, which I hope will please the noble Baroness, Lady Carnegy of Lour. She wanted me to accept that amendment here and now. My difficulty is that there is a technical problem with the drafting, as I have already explained to the noble Baroness, Lady Anelay, who accepted that explanation. The amendment is worthy of consideration for the exact reasons that noble Lords have stated. I am happy to take it away for further consideration and return to it at Third Reading.
	My noble friend Lady Warwick and the noble Lord, Lord Dholakia, know that I shall resist Amendment No. 10 regarding creating a review of the kind that it describes. I understand why noble Lords want to put matters on the face of legislation—it is a guarantee of what the Government are seeking to do—but there is no reason to fear the introduction of our administrative review system. It is important that we introduce the system and we are committed to it, but making that process statutory on the face of legislation would bring with it all the difficulties of creating rigidity in a system that needs to be flexible. It is also an administrative review, which would not sit well with being statutory. However, we are committed to doing it and will work closely on it with my noble friend and others.
	I shall not accept the idea that Clause 4(1) cannot come into force until at least January 2010, because this is a better system for future students and employees; when we are ready to introduce it, we should do it properly. I do not want to be captured by legislation that sets out a date that may be inappropriate for many reasons, although I understand why noble Lords want to set a date.
	Regarding Amendment No. 77, I bow always to the Delegated Powers and Regulatory Reform Committee. I have not yet failed, nor do I plan ever to fail, to accept what it says. So when it does not say something, I take that to mean that noble Lords on that committee are reasonably content with what we have done. They made no comment on the procedure in Clause 59 and, therefore, I do not propose to accept that amendment.
	I hope that the explanations and the commitments that I have given about Third Reading may offer some cheer to noble Lords and perhaps some greater understanding of why we are proposing a new system with a new process rather than thinking about the old system and the concerns that quite rightly noble Lords have had. On that basis, I hope that at this stage the noble Lord will feel able to withdraw the amendment.

Lord Avebury: My Lords, again the noble Baroness has said, as she did constantly in Grand Committee, that we have to forget about the existing system. The same people are going to operate the new system, which is what makes us anxious. The same entry certificate officers, who, as the noble Baroness, Lady Warwick, has pointed out, had 25 per cent of their decisions overturned on appeal, will be dealing with the new system. Even though one tries to be as objective as possible, they will still have to exercise an element of judgment, which will be subject to only an internal administrative review, about which the noble Baroness has been able to tell us very little.
	The issue is not simply whether the documents are forged or not, which is a matter of fact that can be determined by reference to the original institution. However, if the idea, which is so meritorious and which we all accept, of having the sponsorship of an academic institution or an employer removes the element of intention from the decision by the ECO, why have we not introduced it already in the immigration rules? I ask the noble Baroness that question and I wonder whether there is an answer to it, or whether we should have embarked on this in a series of steps that would have enabled us to judge whether they were effective. The system whereby academic institutions are on the register is already in place. They are recognised as being responsible for judging the applications of students, so the ECO does not have to go behind those, except to say whether the course is appropriate or whether the institution meets the particular needs, as in the case of the famous student who wanted to study English in Northern Ireland.
	We would not have any of those nonsenses if we had already instituted the system of established sponsorship by an academic institution or by an employer and if we had been able to treat that as conclusive in removing the element of judgment by the ECO on whether something was going to comply with the immigration rules. One could have done that in the existing immigration rules and we would not have had to abandon the rights of appeal because, by definition, there would have been a much smaller number of appeals against decisions which are now made on the basis of someone's assessment of intentions.
	As the noble Baroness said—this has been echoed by every noble Lord who has spoken—we do not know enough about the system to evaluate it. I am most grateful to the Minister for saying that at least we will have the report of the consultation on a points system before Third Reading. I honestly believe that we would have a much more fruitful and productive discussion if we had that document before us. As I am about to withdraw the amendment, I look forward to a further discussion at Third Reading and I hope that on that occasion we will be able to make progress. We shall know more clearly what is intended and many of the blanks that we face at the moment will be filled in. We will know how the points system has been evaluated by those who have been consulted on it and we will perhaps know more about the administrative review, about which the Minister has been able to say very little, but which clearly, in the minds of the academic community, and particularly in the mind of the noble Baroness, Lady Warwick, is of vital importance.
	We will not get over the subjective decisions when, to quote the noble Baroness's department's document, Tribunals for Diverse Users,
	"Its key features need to be independence, professionalism, accessibility and efficiency".
	Perhaps the noble Baroness could say—I would be delighted if she interrupted me to do so—whether this document applies to the administrative review that we are talking about. She was referring, as I understood her, to the White Paper, Transforming Public Services: Complaints, Redress and Tribunals, so I rather inferred from that that the comments made in this document applied pari passu to the administrative review to be introduced under this Bill. That would be very important, because we would at least have an independent yardstick by which to judge the process when it is finally introduced. If the noble Baroness does not want to interrupt me, perhaps we can come back to that point on Third Reading. I beg leave to withdraw the amendment.

Baroness Ashton of Upholland: My Lords, as the noble Lord, Lord Avebury, says, we dealt with this issue to a degree in Grand Committee. Taking Amendment No. 7 first, the noble Lord will know that refusal of entry clearance for returning residents is on the basis of objective criteria. I hear what the noble Lord says about the particular case he raised. It is right that if someone has been outside the UK for more than two years, that is a factor to be taken into account. We allow returning residents to retain a limited right of appeal on human rights and racial discrimination grounds. Any argument that would be put forward, for example, under Article 8—the right to respect for family and private life—could still be raised under Clause 4 of this Bill. That does not get taken away. As the noble Lord acknowledged in Committee, many residents who have indefinite leave also have the opportunity to apply for citizenship.
	As the noble Lord, Lord Avebury, has raised the matter again, I have looked at it very carefully. However, I remain of the view that there is already an objective set of criteria that allows for the kind of appeals which would deal with his concerns. He will be disappointed by the reply, but that is the Government's position.
	On Amendment No. 8, the Immigration (European Economic Area) Regulations 2000 (As Amended) give the issue the ability to be addressed. It is not that we are replacing secondary and primary legislation; it is done through that set of regulations. They are the appropriate place for the appeal rights to be defined. The amendment does not deal with the persons claiming rights under the ECAA arrangements, but we will ensure that we reinstate all the relevant rights that are to be removed under the Bill, using those 2000 regulations, as I have indicated. I reiterate that we do not accept that there is settled Community law which generally requires other classes of applicant to receive an appeal against a decision to refuse entry clearance. However, we have also made it clear that if Community law develops and the right of appeal is extended, of course we will give effect to that within the regulations.
	There is therefore no intent to do anything other than restore what the noble Lord primarily seeks, but to do it in the right place, which is where it is now in those regulations. I hope that that will reassure him.

Lord Avebury: My Lords, I still fail to understand why the noble Baroness, knowing that there are exceptions under the returning residents scheme, is unwilling to grant those people rights of appeal. She still did not say whether the example I gave in Committee, and repeated today, was one where the individuals concerned should be denied rights, or whether they were so denied because the Bill was not in force. There will always be a small number of people who for good reasons are not able to comply with the conditions for returning residents, and in particular will have been away from this country for more than two years generally in circumstances of great family tragedy; for example, the couple whose son was killed.
	I therefore argue that it is inhuman to deprive people who have already suffered intensely as a result of, say, a family bereavement and say, "You have forfeited your right of appeal through no fault of your own". I simply cannot understand why the noble Baroness is so resistant to that amendment.
	I accept it is possible to do as she says under the regulations she quoted, but I still cannot understand why, when there is the opportunity to make provision in primary legislation to retain people's rights, that we should take away the rights in the Bill and then restore them by secondary legislation. But obviously we are not going to win this argument so, for the time being, I beg leave to withdraw the amendment.

Lord Dholakia: My Lords, the purpose of the amendment is to maintain the status quo in national security appeals whereby both risk of breach of human rights on return and the national security case are heard before the applicant leaves the UK.
	The Immigration Law Practitioners' Association has done a good deal of work and I am grateful for the information and briefing it has supplied to us. These proposals for a variety of measures relating to terrorism were published over the summer months. Many are now part of the Terrorism Bill. On 15 September, the Home Secretary set out draft clauses that would be introduced into this Bill.
	It is right that we respond to public concern after the events of 7 July. However, we need to work out the implication of what is proposed in this legislation. It should be emphasised that all the provisions, with the exception of Clause 52, go wider than any current definition of terrorism and cover broad questions of national security and "the public good". They fall to be tested, therefore, not only on the question of whether they are reasonable ways to deal with cases where people pose a threat to national security but also with those convicted or merely suspected of other crimes.
	A large number of organisations working in this field are of the view that the case for new legislation in this area has not been made and that the new provisions fail to respect rights and civil liberties. Existing immigration law contains ample powers to deal with those who pose a threat to national security. The debate in Grand Committee was characterised by the Minister sketching extreme cases for which more than adequate provision is already made under existing legislation; and then seeking to use those to contend for an extension of existing powers. All arguments about better provision in the Terrorism Bill are relevant but the clauses introduce a few new problems of their own.
	Let me spell those out. Clause 7 provides that if a case raises national security concerns the part of the appeal dealing with whether the appellant's human rights will be breached on return will be dealt with before removal and the part which deals with national security will be dealt with after removal as an out-of-country appeal. This creates a two-stop appeal out of a one-stop appeal. It is wholly at variance with the Government's approach in other parts of the appeal system that we discussed only recently.
	In Committee, the Minister said that the new clause is designed to streamline the process of appeals against deportation orders in national security cases. However, it streamlines nothing: it creates a two-stop appeal process, as the Minister acknowledged in Grand Committee. He said:
	"Our view is that SIAC is well and best placed to deal with what is, as the noble Lord said, the potential for a two-part appeal".—[ Official Report, 20/1/06; GC 99]
	In Committee in the Commons, the Minister of State reaffirmed and supported statements by the noble Lord, Lord Filkin, during the passage of the Nationality, Immigration and Asylum Act 2002: that the person is sent back and only then the question of whether they are a risk to the safety of the United Kingdom is examined; there are powers to prosecute people here, and powers to extradite them. The approach proposed by Clause 7 is, therefore, irresponsible. It may put the applicant at risk. In some cases the risk on return is born from the national security case against the appellant. That the British Government suspect persons of being a threat to national security, whether or not the suspicion is well founded, may be what turns their own government against them. If the British Government provided only details of the national security case once the appellant was back at home, this could put him or her at risk of torture. Those points were all put to the Minister in Grand Committee.
	SIAC cannot take into account what it does not know. If it does not know what is the national security case against the appellant, it cannot look at the relevance of this to the risk of torture or other flagrant breaches of human rights on return at the in-country stage of the appeal. One result of Clause 7 is likely to be that people are returned and then tortured. Another will be attempts to raise risk through judicial review challenges before removal.
	In other cases, where the national security case is known, it is likely to be rehearsed in detail as part of the human rights case pre-removal; and yet these points cannot be decided. Instead, the evidence must all be considered again at an out-of-country appeal post-removal involving repetition and wasting resources. It will result in the United Kingdom exporting risk. The Government have accepted that this is an effective way of tackling the threat from international terrorism. In practice, it would be difficult or impossible to separate the human rights and national security aspects of the appeal—for example, the threat to the appellant could derive from the national security case against him or her; that is, the fact that he or she has been labelled as a terrorist. This proposal is inconsistent with the general aim of a single appeal. It requires at least two appeals which would often involve the same question and evidence. The clause would result in unfairness for the appellant, who, having been deported, would not be present in the United Kingdom while the national security case against him or her is heard. I beg to move.

On Question, Whether the said amendment (No. 11) shall be agreed to?
	Their Lordships divided: Contents, 59; Not-Contents, 156

Baroness Anelay of St Johns: My Lords, in moving the amendment, I shall speak also to Amendment No. 24. I have tabled the amendments in response to a briefing from representatives of the Chinese, Bangladeshi, Indian and Pakistani communities in the UK. They are probing amendments which seek some explanation and assurances from the Minister.
	We debated Amendment No. 22 in Grand Committee and, as we are now at the Report stage, I shall refer to it only briefly now. It would excuse an employer from paying a civil penalty if it was the first time that he had contravened the provisions of Clause 15, if he had co-operated fully with the enforcement officers and if he was willing to take help and advice so that he does not reoffend.
	Members on all sides of the House have made it clear that they deplore the employment of those who have no right to work here. Illegal working can end in tragedy, as we saw at Morecambe Bay. All good employers and their representative bodies support the principle of sanctions on employers, but are concerned about the detailed implications of the Government's proposals in this Bill.
	Amendment No. 24 would require the Secretary of State to consult employers before the Government put into place the civil penalty regime. In Grand Committee, the Minister made available a draft of the code of practice. What further developments have there been on the draft code? Have any improvements been made as a consequence of any further consultations that the Minister has held? She stated in Grand Committee that she anticipated meeting again representatives of the various ethnic communities which had expressed their concerns. She made some reference to that earlier today during tributes to Lord Chan. Will she bring us up to date on those meetings?
	I have been advised by Christine Lee of the North London Chinese Association that she and her colleagues have held briefing meetings around the country—for example, in Manchester, Birmingham, Stirling and Sheffield, in addition to London. At Second Reading, Lord Chan gave a full explanation of their reasons for concern and set it carefully against the background of the development of their small businesses, which are so important to the UK economy. Ms Lee and her colleagues point out that the Government have not had any consultation specifically with the Chinese, Bangladeshi or Indian catering sectors or with any other organisations which involve employers who rely on overseas workers in the restaurant industry. I would be grateful if the Minister could respond to that point today.
	I am also advised that many employers do not have the time or resources to perform the policing role that they believe is better and more appropriately performed by the IND. The Minister will be well aware of the vibrancy of the catering sector represented by Ms Lee and her colleagues. It is also interesting to note that the most recent statistics published by the Government demonstrate the importance of the Chinese ethnic group in England. The Government's press release of 26 January states:
	"The fastest population growth between 2001 and 2003 in England was in the Chinese ethnic group with an average annual growth rate of 11.1%, largely due to the net international in-migration of people born in China".
	This exactly reflects the evidence adduced by Ms Lee about the importance to small catering businesses here of being able to recruit chefs and kitchen staff directly from China.
	Mr John May, vice-chair of the North London Chinese Association, has put forward three proposals to improve Home Office practice. First, the Home Office should include a non-compulsory invitation to disclose the respondent's ethnic group when an individual or a group responds to a consultation exercise; secondly, the Government should publish the ethnic breakdown of respondents to consultations; and, thirdly, the Home Office should as a matter of urgency produce the list of stakeholders that it has undertaken to compile and should make positive efforts to include Chinese community and business associations on that list. I appreciate that, as we recognised earlier, the Minister has her locus in the DCA and is taking this Bill forward on behalf of colleagues in the Home Office, but will she agree to discuss those proposals with her colleagues at the Home Office to ensure that this is a continuing process?
	I referred in passing to these concerns when we debated the Identity Cards Bill on Monday of last week. I was cautiously optimistic about the response of the noble Lord, Lord Bassam of Brighton, who expressed an intention of the Home Office,
	"to reach out to those groups who would otherwise ordinarily feel excluded from consultation".—[Official Report, 30/01/06; col. 72.]
	But, as the vice-chair of the North London Chinese Association points out to me, the devil is in the detail. If the Government do not know who these groups are and how to contact them, outreach will not work, however good the Government's intentions are. I beg to move.

Baroness Turner of Camden: My Lords, I speak to Amendment No. 23, which is included in the group that we are discussing. I introduced a rather similar amendment in Grand Committee. This one is rather shorter but is concerned with the use by employers of migrant workers as cheap labour. In Grand Committee, perhaps because of the way in which I spoke about the possibility of regularising illegal workers, much of the discussion—and, indeed, the response of my noble friend the Minister—dealt with the whole issue of the employment of illegal workers.
	The main objective of my amendment is to draw attention to the fact that there are unscrupulous employers who will exploit migrant workers if they can get away with it and that everything possible should be done to make sure that they do not. I have already drawn attention in previous debates to the way in which the Director General of the CBI has welcomed immigration on the ground that it deals with "wage inflation"; in other words, it keeps the general level of wages down. Migrant workers are willing to work for low wages; they are often quite unaware of the existence of minimum wage rates or of health and safety conditions and are much too scared to take issue with their employer even if they are aware of them. Many of them are sending part of their earnings home to families who are even poorer than they are.
	Of course, a suspicion that migrant workers are undercutting wage levels does not help race relations. I am glad that trade unions are recruiting among migrant workers and doing their best to improve wages and conditions. However, there are problems. On the BBC's "Politics Show" at the weekend there was discussion of this whole issue. It is clear that some people think that a free market in labour is keeping down the general level of wages and is therefore to be welcomed. That is all very well; large profits can be made but, of course, as usual, the very poor pay for it. For that reason my amendment refers to the right to join unions and to participate in workshop organisations.
	I hope that this time round my noble friend the Minister will be willing to respond sympathetically to the wording of the amendment. As I said earlier, in Grand Committee and, I believe, at Second Reading, the possibility of migrant workers undercutting the general level of wages is not a very good idea in this country. It can lead to a worsening of race relations and make employment relations that much more difficult. I therefore hope that my noble friend will be prepared to view what I have said with sympathy.

Lord Dholakia: My Lords, I support what was said by the noble Baroness, Lady Anelay, about the issue affecting the Chinese community. All of us have met the person concerned at different times and she has made representations on behalf of the Chinese community. However, she also made it very clear that the issue affects other minorities, particularly those involved in the catering industry.
	One of the assumptions that is often made by decision makers is that if you have a large ethnic community in this country, particularly involved in the catering trade, you should be able to find people from that community to provide services. That is utter nonsense. A large number of people growing up in this country who comprise the second, third or fourth generations of their ethnic minority do not want to do precisely what their parents did. They have received a better education and are better qualified than their parents and do not want to go into the catering industry. However, that industry creates substantial wealth for this country. It contributes about £2.3 or £2.4 billion to the British economy. We ought to be careful to ensure that no generalised assumptions are made where applications are concerned and that the Minister takes into account the special needs of that community to be able to make them.

Lord Dholakia: My Lords, Amendment No. 26 deals with Clause 32 on passenger and crew information and police powers. We define this very much as a rendition amendment. Much of the discussion has taken place in the other place. One of the difficulties that we have faced in recent times is the words that repeatedly cropped up there, extraordinary rendition, which is the covert, involuntary transfer of individuals—commonly terrorist suspects—between one country and another. In particular, extraordinary rendition refers to the alleged US practice of rendering terrorist suspects to countries—usually Middle Eastern or Asian states such as Egypt, Morocco or Jordan—where they are subjected to torture or other mistreatment to obtain information.
	The Minister looks puzzled about why I am talking about that. I am simply setting the background of the purpose of the amendment. Since we have not been able to get any further with this matter, particularly in relation to questions being put to the Foreign Secretary, it is right and proper that we have a system in this country when we give police powers to be able to seek such information that it is systematically collected. Will the e-borders system being set up by the Immigration, Asylum and Nationality Bill monitor as a matter of course all flights in and out of the United Kingdom, both civil and commercial?
	A specific reason for collecting routine data from private jets as well as commercial airlines is that private aircraft are alleged to have been used by the CIA to transfer prisoners illegally and for the purposes of subjecting them to interrogation methods including torture and/or inhuman and degrading treatment. British police forces have a positive duty to investigate allegations that such flights have touched down in the United Kingdom, because if that is proved to be the case there would be an obligation on them to intervene and make arrests to prevent an illegal act taking place. We would welcome assurances that passenger details will be required from all flights, including those that touch down only for refuelling, so that investigations can take place where appropriate.
	It is currently not clear what information is required from private aircraft landing in the United Kingdom. It may be that no record exists for non fee-paying passengers on those flights, or that records are not kept when the plane is simply landing for the purpose of refuelling. Will the Minister clarify the way in which the current rules operate? What information is currently required from non-commercial charter flights, including those where the aircraft is carrying neither fee-paying passengers nor cargo, and where the aircraft is simply landing briefly for the purposes of refuelling? Where is that information held, and for how long is it held? That would go a long way in terms of giving some information on some of the practices that we all condemn. I beg to move.

Lord Dholakia: My Lords, I thought that we were being rather helpful to her by identifying the treatment received by people suspected of being terrorists. However, I am grateful that the Minister said that she would look at that matter and come back to us at some stage, at least before Third Reading. That would be helpful and, meanwhile, I beg leave to withdraw the amendment.

Lord Hylton: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 28 and 29 grouped with it. The three amendments tighten up the loose and sloppy drafting of the Bill. They are a definite improvement on my earlier attempt in Grand Committee. They provide the important safeguards that information may be disclosed outside the United Kingdom only for police purposes and with the consent of the Secretary of State.
	Amendment No. 29, which is consequential, precisely defines "police purposes". Amendment No. 28 provides for accountability and transparency by requiring the Secretary of State to specify the external agencies by means of an order.
	This brings Clause 39 into line with Clauses 32 and 33. I hope that my approach will be acceptable to your Lordship's Select Committees on human rights and on the constitution. I trust that it will commend itself to the Government on grounds of both principle and drafting. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the explanations given by the noble Lords, Lord Hylton and Lord Avebury. Sadly, I will resist the amendments because, apart from anything else, one has to be clear about the amount of effort and energy that would be appropriate, particularly because it would place a particularly burdensome requirement on the Secretary of State and the police.
	However, I seek to reassure the noble Lord, Lord Avebury, on some of the issues he raised. First, it is right and proper that human rights issues are taken forward under Article 8 of ECHR and we expect chief police officers to take this seriously. The Human Rights Act is a backdrop to all public service. We expect people to take it seriously and I believe that they do. In all of these issues it is important that that is noted and that people recognise the importance of doing so.
	The Data Protection Act and the eighth data protection principle come into play. That principle states:
	"Personal data shall not be transferred to a country outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".
	It is a principle that would be followed. The noble Lord, Lord Avebury, asked me how we would deal with the framework decision in terms our presidency and the work on data protection. The noble Lord knows that I am responsible for data protection in government and I spent a huge amount of time during the presidency dealing with many issues relating to data retention and data protection. He will also know that the European Parliament has started its deliberations on the work proposed by the Commission and the Council has not yet reached conclusions—not least, because there is a huge number of issues to take forward. I am happy to keep the noble Lord informed of how we get on. It is expected that we will make significant progress under the Austrian presidency. My own view is that we will not finish this until the Finnish presidency, because there is much to do.
	There is a great deal of commitment, particularly in the European Parliament, to ensure that the balance between how we share data and how we protect it is recognised. The Justice and Home Affairs Commissioner Franco Fettini has often talked about the scales of making sure that alongside security you protect people's rights, and the Council of 25 nation states have approached that from different viewpoints, but I find a general recognition within the Council that this is an important aspect of what we do.
	Noble Lords will also know that at Vienna we discussed issues concerning Europol and data, ensuring that we had a consistent approach. I took that forward for the Home Office. As regards European Union work, we have to ensure that data protection issues are correctly understood and undertaken. There are issues about sharing data between nation states. We need to be clear with whom we are sharing information, on what basis and in what the circumstances and, broader than that, we have to recognise the importance of this.
	On the data protection principle, the exceptions that are applied concern substantial public interest. We need to think very carefully about what we are seeking to achieve. Essentially this concerns enabling the appropriate level within our police services to share information and give information appropriately. We believe that the safeguards are there. We accept the role of the Human Rights Act, as do the police. We accept the data protection principles, particularly the eighth principle. We accept that in the European Union much work still needs to be done on data protection but people need to be willing to adhere to how far we have gone. Our information commissioner meets regularly with his counterparts in Europe to discuss these issues. He and I are considering how best we can work together to deal with data protection issues across Europe. I am not sure whether that fully reassures the noble Lord, but I am very clear about the way in which we are seeking to approach the issue.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for covering many issues on the important point of ensuring that we contract out appropriately. Noble Lords have moved for deletion of the clauses, but I am taking many of the comments to be on ensuring that the system we are designing is fit for purpose. It ranges from the continuing desire of the noble Earl, Lord Listowel, to ensure that children are properly safeguarded to ensuring that the current workforce is not displaced or ill-treated, as expressed by my noble friend Lady Turner. There is also the general principle of ensuring that the system is robust and uses people appropriately.
	I will try to deal with some of the issues that have been raised rather than read the text of my brief. The concerns are specific. I take the point about the mundane tasks turning into something less than mundane. However, the search activities are straightforward. If someone is found, we want to ensure that the people carrying out the searches are able to deal with the individual. As the noble Earl, Lord Listowel, will recognise, some of the young people in such circumstances could be extremely vulnerable.
	As I hope I spelt out well in Committee, we want to ensure that contractors have the proper safeguards in place, that they train their staff appropriately, that it is an individually based contract and so forth. The powers of the contractors are set out in Clause 40(7) and they are deliberately limited. I know that there is an issue surrounding the three-hour time limit because I have discussed the matter with some of our stakeholders in the past couple of days. When dealing with legislation, one tries to ensure that one has captured the widest spectrum of possible need. In this case, we want to ensure that we can hang on to people so that we can hand them over properly. However, when I have discussed the matter with officials, the expectation has always been that you would hand them over very quickly—much more quickly than three hours. The three hours is a maximum limit and the critical point in legislation is to be clear about the maximum limit.
	We would expect that to be extremely rare. However, it is possible—not because immigration officers are off-site having a cup of tea or whatever—that it may be extended. Let us say that, for example, a number of people have been found, that the officers are trying to move from person to person, and that other incidents may have taken place. There could be a range of circumstances in which that maximum of three hours is important, but it is there as a safeguard and we would expect it to be exceeded only in extremely rare circumstances. The current pilot schemes are different because the private contractors work only alongside immigration officers. Here we are setting up something different, which is why we have set it out this way and have been clear about the maximum time.
	I understand noble Lords' need to ensure that the contractors are properly trained. They will have to provide the Immigration Service and the appointed monitors with access to the course material and the opportunity to attend the training they provide to ensure that there is high quality. I am happy to make that training document available to noble Lords, if they would find it of value. There is no difficulty with that whatever.
	Furthermore, the French police will check all those who are to work in the Calais port area, regardless of the nationality of the employee. All persons will be checked for the existence of a criminal record in France. These records contain all charges or other issues around sex offences.
	My noble friend Lady Turner has been particularly concerned about the PCS and has reiterated it again. My honourable friend Tony McNulty and senior managers of the Immigration Service have held meetings with the PCS. There is no intention to replace warranted staff with contractors. I put it this way: there will be no redundancies. Perhaps that will reassure my noble friend Lady Turner more completely than anything else I might say.
	The noble Lord, Lord Avebury, was rightly concerned that those who had a complaint would need to know to whom they could complain. At the time, they can complain to the Immigration Service officer in charge, the chief immigration officer, who will be required to refer the matter to the monitor.
	The noble Lord asked about PACE. We discussed this matter in correspondence. As the noble Lord knows, the application of PACE is neither a legal requirement nor, we believe, appropriate and there will be no alternative code. But the contractors will be provided with detailed operational instructions which in some respects will mirror a number of the requirements of the Police and Criminal Evidence Act. For instance, all those detected will be advised in writing of the reason for their detention and the purpose of any search undertaken. Records will be kept. There will be significant safeguards within the proposed layers of scrutiny to ensure that those searching abide by the operational instructions provided by the immigration service. Because essentially the provisions of PACE are intended to protect the rights of those under investigation and facing arrest, the noble Lord will recognise that there are different circumstances, but I hope that I have given some assurances.
	The noble Earl, Lord Listowel, rightly focuses on the general question of children. I have talked with the noble Earl on a number of occasions. I accept that any child found in these circumstances will be among the most vulnerable we may ever find—a child who speaks no English and may not know where he is or why he is here and so on. I sought to spell this out in Committee. It is important that those who detain the child do so appropriately and properly. I have had good discussions with the Refugee Children's Consortium, with which we shall continue to work to ensure that the provision is right.
	If a heartbeat is detected, I want those persons to move swiftly because that child could also be in trouble. There have been too many tragedies. It is not about getting somebody else to come in. I would want the people finding the heartbeat of the child or the adult to move swiftly to ensure that we got him out and that we held on to him. The noble Earl and I, and the Refugee Children's Consortium, discussed ensuring that people are properly trained to hold on to young people in particular. They might run away because they do not know where they are and what is happening. It is important that they are held on to for their own safety. We are in discussions with the Children's Commissioner. My ministerial colleagues have not yet met with the Children's Commissioner, although that is no more than a diary issue. The meeting is being arranged and we await the outcome. I shall let the noble Lord, Lord Avebury, and the noble Earl, Lord Listowel, know about it. The Foreign Office has found the French equivalent—Défenseur des Enfants—and we seek to make contact in order to raise equivalent concerns with our French counterpart on those issues.

Lord Avebury: My Lords, I thank the noble Baroness. That is a useful assurance. The codes of conduct are of material importance to those of us who are anxious about the employment of private contractors generally. It is not simply about incorporating adequate safeguards into the system. Some of us go further: we dislike the notion of employing contractors in these duties because of the risks deployed, as every noble Lord who has spoken has said, in particular the noble Earl, Lord Listowel, with his immense experience of children's issues.
	We are pleased to hear that there is an equivalent of the Children's Commissioner in France. It is remarkable that we had to wait until Report stage of the Bill before discovering such an essential fact. The existence of such a person, and the liaison between our own Children's Commissioner and his opposite number in France, are not the whole answer to the objections that we have raised. We are still anxious that vulnerable people—in particular children—can be in the custody of officials who are subject to only the remotest of controls via the immigration officers at the ports concerned and, through them, to the authorities in this country. It is one removed from the supervision and monitoring that we exercise over, for example, the immigration detention centres in this country, which any noble Lord can inspect and the Chief Inspector of Prisons inspects regularly. We think that it will be more difficult for such oversight to be exercised in the juxtaposed controls. The existence of the private contractors adds an element of risk which does not exist elsewhere.
	I am sure that we shall return to the subject at Third Reading. In the expectation that we shall have learnt more about the process in the meanwhile, I beg leave to withdraw the amendment.

Lord Dholakia: My Lords, the amendment deals with what is appropriate in an arrest or a detention. The clause, although it now sits in the "Information" part of the Bill, was introduced with other amendments on terrorism, which are now Clauses 7, 51 to 55. It provides new powers to detain embarking passengers who are not British citizens for up to 12 hours and to establish the person's identity, compliance with conditions of leave and whether return to the UK is prohibited or restricted. It also applies to all non-British citizens who are embarking passengers, not just those considered to pose a national security risk.
	We have tabled the amendment because of a discussion that took place in the other place involving Mrs Gillan, who asked the Minister whether he would comment on the individual's ability to contact a legal adviser, or his embassy or High Commission, during the period of detention. Mr McNulty replied:
	"Before the 12 hours are up, there will be no right to legal representation and none of the other rights afforded by PACE. It is not an arrest for a criminal offence. It is detention under the administrative powers of immigration legislation. If it goes beyond 12 hours, the legal rights and powers under PACE will kick in, but not before".
	The Minister also sought to justify this clause on the basis that it was better to have power to detain an embarking passenger than to arrest him. I quote again:
	"Currently, we are able to take all that information from someone only if they are arrested. Clearly, we do not want to arrest everybody . . . In that regard, having the facility, which is all that the two new clauses propose, to establish beyond doubt a person's identity as they are leaving and to take a record of that by biometrics is a more than appropriate halfway house".—[Official Report, Commons Standing Committee E, 27/10/05; cols. 308-10.]
	The point that I make is that arrest is unpleasant but it carries legal safeguards on the right for representation. The clause envisages continuous detention for a period of up to 12 hours. It is unlikely that anyone would realise that the embarking passenger was being detained. They would not be allowed to tell anyone unless the clause is amended.
	Many other countries follow the type of legislation that we enact in this country. I would hate to think of somebody being detained for a period of up to 12 hours for no reason other than to seek information and at the same time being denied any right of representation whatever. In that respect, I beg to move.

Baroness Ashton of Upholland: My Lords, the purpose of holding somebody is—if you like, it is an administrative detention—to establish their identity, nationality and/or immigration status. The vast majority of people, therefore—we are back to maximum times—will be held for much shorter lengths of time than 12 hours. Twelve hours, as I have indicated, is a maximum. At present, those detained on arrival under paragraph 16(1) or (1A) of Schedule 2 to the Immigration Act 1971 have access to telephone facilities once they are taken to the holding facilities in the port. The treatment of embarking passengers detained under the new limited power will mirror those existing powers, so people will have access to telephones during that time if they are transferred across.
	As I have indicated, in practice, the detention will be kept to the shortest possible period necessary to satisfactorily establish the person's identity and/or immigration status, after which the person would be released. If the examination reveals grounds sufficient to justify the arrest of the passenger for a criminal offence, he will be arrested and transferred to police custody where, as the noble Lord, Lord Dholakia, has indicated, the usual PACE safeguards will apply.
	My argument is that the amendment is not necessary. The circumstances that we are describing, with access to phones, a minimum time—we have also put a maximum amount of time—and the fact that this is an administrative detention to establish who the person is are appropriate. Normally I accept the point that one wishes to give access as quickly as possible, and we think that 12 hours is right. I hope on that basis that the noble Lord is able to withdraw the amendment.

Lord Avebury: My Lords, I am sorry to interrupt the noble Baroness. I hope she will have an opportunity of speaking later. I begin by saying that this clause, as the Minister has explained, allows local authorities to provide accommodation to failed asylum seekers in accordance with arrangements that have been made by the Secretary of State. The amendments now before your Lordships extend this to the provision of vouchers for people receiving this accommodation. As the honourable Member for Walthamstow observed in another place, people supported under Section 4 used to be given cash, but then luncheon vouchers were provided instead. That caused all the problems that were encountered with the former hated voucher system.
	This change was as a result of legal advice obtained by NASS in March 2005, which, as far as I know, has not been seen by anybody else—at least, that was the position at the end of May 2005, when Refugee Action and Citizens Advice obtained advice from Doughty Street Chambers on the extent of the powers under Section 4. This opinion stated that there was no express prohibition in Section 4 against making cash payments and that the arguments that cash payments would allow the recipient to obtain items outside the scope of Section 4 was invalid because people could sell the vouchers and spend the cash on whatever they wanted, as indeed they do and have always done.
	As Citizens Advice has pointed out, giving vouchers that can be used only for food and drink has a number of major disadvantages. The recipient cannot get everyday essentials, such as clothes, baby items and toiletries. He cannot use public transport, even for essential journeys that are necessary to comply with reporting conditions. He cannot buy food other than from designated retailers, which may not be local to the accommodation supplied. He cannot attend medical appointments and so on. He may not be able to buy culturally appropriate food, such as halal meat, or to conform to medically prescribed dietary requirements. He will not have access to basic medication, since those on Section 4 support are not entitled to free NHS care. Finally, there is a flourishing black market in vouchers, with criminal profiteers buying them—usually at 50 per cent of their face value—in return for cash.
	Last month, there were 5,000 failed asylum seekers of 70 different nationalities on Section 4 support. In spite of Home Office efforts to open a route of return to Iraq and so reduce the number of Iraqis on such support, there were still over 3,300 on 9 January. Following legal challenges, the Section 4 scheme is developing from a small-scale, short-term support system to a large-scale, long-term one. Many individuals have now been on Section 4 support for a great many months; Citizens Advice knows of one Congolese woman who has been on it for two years, while many Iraqis have been on it since early 2005. The number of applications for Section 4 support rose from 3,000 in 2004 to 15,000 in 2005 and, since June last year, two thirds of the appeals to the asylum support adjudicators have been in relation to refusal of that support.
	We were therefore disappointed that the Government, having said that they would consider the representations by the honourable Member for Walthamstow—who is, after all, chair of the All-Party Parliamentary Group on Refugees and has considerable expertise in the subject—and having conceded that NASS's legal advice may have been wrong, decided to return to the abominable voucher system. That is a deplorable return to the past, and I hope that we shall give another place a chance to think again about what the Home Office is doing.

Lord Avebury: My Lords, I am most grateful to the Minister for saying that these people will, at least, receive free both primary and secondary care. I hope that that will include free prescriptions, since that is an essential element of the care that a general practitioner gives to a patient. He signs a prescription; they take it along to a chemist and, if they have no money, then they must of a class that would be exempted. That would be a useful concession, because one item which they currently have to buy out of their non-existent money is medication. It is a serious matter if you cannot even buy aspirin to take care of yourself and your family.
	With great respect to the Minister, she has not really addressed the nub of the problems which we all know exist with the voucher scheme. We ought to have known better than to reintroduce it after our prior experience of it. We have heard from the noble Earl, Lord Listowel, the noble Lord, Lord Hylton, and the NGOs who are doubtless advising the department that it is a mistake. However, I can see that we will get no further on Report with cancelling the voucher scheme. I shall have to withdraw my amendment and hope to come back to it at some later stage, if we can exert the kind of pressure which the NGOs believe should be brought to bear on the Government on that issue. Meanwhile, I beg leave to withdraw the amendment.

Lord Avebury: My Lords, as your Lordships will recall, Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 created a new category of people in Schedule 3 of the NIA Act 2002—"failed asylum-seeker with family"—and established conditions under which such persons would become ineligible for financial and material support of any kind, including social welfare provisions such as the Children Act 1989 and its equivalents in Scotland and Northern Ireland. If persons in that category do not take "reasonable steps" to leave the UK, the Secretary of State may issue a certificate stating that they have failed to do so without reasonable excuse. Support is then withdrawn from adult numbers of the family, unless that would lead to a breach of the Human Rights Act.
	The Government's argument for making those families destitute was that it would encourage them to leave "voluntarily" once their case had been finally decided. We opposed that clause when the Bill came before us and agreed with many in children's and human rights NGOs who argued that its implementation would lead to breaches of the UN Convention on the Rights of the Child. Wisely, the Government decided that, before rolling out the proposal nationally, they would test it in three areas: central and east London, Greater Manchester and West Yorkshire and, in those areas, on 116 specified families.
	In a study by Barnardo's, the local authorities concerned said that Section 9 was wholly incompatible with the Children Act and some feared that it would damage the welfare principle and child-centred practice more generally. Ms Nancy Kelly, head of international and UK policy at the Refugee Council, giving evidence before Sub-Committee F of your Lordships' European Union Select Committee on 25 January stated that the pilots had caused:
	"enormous distress and terrible destitution".
	She said that one-third of the families studied had been wrongly allocated because they still had rights of appeal. In other words, those families had been unlawfully deprived of support. Inevitably, that would happen on a far larger scale across the country if Section 9 were rolled out everywhere.
	One woman in the survey attempted to commit suicide three times and many people had significant mental health problems. Ms Kelly said that there was a low risk of absconding while those families were being supported, but that some of them vanished under threat of being separated from their children.
	Subsection (1) of the new clause contains the power to make an order repealing the relevant provision in the 2002 Act inserted there by Section 9 of the 2004 Act. Subsection (2) refers to Section 9(1), (2) and (4) of the Asylum and Immigration Act 2004. Section 9 included a fifth class of persons ineligible for support under Schedule 3 to the Nationality, Immigration and Asylum 2002—a failed asylum seeker with family. It also gave those families a right of appeal to the asylum support adjudicator under Section 103 of the Immigration and Asylum 1999, while removing the right of appeal under Section 103 for other classes of persons listed as ineligible for support under Schedule 3. In repealing parts of Section 9, we are not restoring a right of appeal to those other classes. Subsection (3) provides that the order will be subject to the negative resolution procedure.
	Section 9 is an inhumane way to coerce vulnerable families. Under the new clause, if the pilots led to the conclusion that other ways to persuade failed asylum seekers to return home, such as the £2000 grant mentioned by the Minister, should be tried, the Secretary of State would have power by order to repeal the provisions of Section 9 relating to failed asylum seekers with families. I am most grateful to the Minister not only for accepting that idea when we suggested it in conversation after Grand Committee but for her invaluable assistance in drafting the new clause. I hope that that is a signal of the Government's recognition that Section 9 may have to be abandoned and that, when the result of the pilots is published, they will not be afraid to admit that they were wrong to proceed down that road. I beg to move.

Lord Lyell of Markyate: rose to ask Her Majesty's Government whether they will introduce charitable remainder trusts.
	My Lords, I am very grateful for the opportunity in this short debate to seek to persuade the Government to introduce the system of charitable remainder trusts. This initiative comes from the Institute for Philanthropy and from others in the charitable sector, including our great universities and education generally, including charities for the underprivileged, medicine and healthcare and the arts and heritage, all of whom have been working closely on this subject for several years. I am most grateful to them all for their help and to my noble friends and noble Lords of all parties, speaking for a wide variety of charities, who support this initiative. In particular, I thank those who have found time to take part in the debate, and the Minister who is here to reply for what I hope he will be able to say.
	Charitable remainder trusts have been highly successful in the United States. Over the past 30 years they have raised more than $110 billion in support of charity. The reason for their success it that they have given the opportunity to individuals and families who are prosperous, but by no means super-rich, to give generously to charity without depriving themselves and their children in the mean time of moneys necessary for their own support. The figures suggest that there are some 3 million people in this category in Britain today, with free assets of between £70,000 and £350,000—there are more, of course, with slightly larger assets.
	Because the assets which are placed in such trusts are often pregnant with capital gain, whether they be shares or real property, they enable such assets to be sold free of the capital gains tax and thus to produce income from their full capital value, both for the settlor and—I say to the Minister—for the Treasury, which would not otherwise have benefited from their realisation for many years, if at all. They also give the settlor an immediate tax credit, the size of which depends on the length of time before the remainder fund enures to the charity.
	To give an example, the intending settlor—it may be a husband and wife—may have shares owned for many years; or perhaps a second home, which has likewise appreciated greatly in money terms, but yields little or no income; or perhaps pictures, jewellery or other works of art—all, say, to a value of £500,000, with a built-in capital gain of £200,000. They wish to have an income for the remainder of their joint lives and then for the fund that remains thereafter—the remainder—to go to charity. That may be one charity or a series of charities; they may seek to appoint who it goes to later.
	The immediate tax credit against their current income would be based on the actuarial value of the fund—say £200,000—which, at 40 per cent, would save tax of some £80,000. The assets, once in the trust, would be realised, and the couple would then receive an income of around, say, 4 per cent or 5 per cent—£20,000 or £25,000—per annum, worth, I would remind Government, some £8,000 or £10,000 per annum to the Treasury in extra tax take. Invested in a balanced fund, this should allow for reasonable capital growth and thus income growth over the years as the capital appreciates. On the second death, the charity would inherit.
	Such charitable remainder trusts are skilfully promoted by charities in the USA. In Britain charities—major and minor, including our great universities—are eager to do likewise. They work closely with fund managers, who will manage the investments and also explain and handle the technicalities.
	The size of the available market from which such charitable giving is likely to come can be estimated from an estimate of United Kingdom wealth distribution published by Mintel, concentrating on the sectors Mintel describes as "affluent". Taking those with average free assets ranging between £70,000 and £350,000, there are some 3.25 million people, with such free assets totalling more than £500 billion. As I said, most of them need the use of this money to maintain themselves in their own lifetimes and, perhaps, to help their children or elderly or other dependants. But with the help of a scheme like CRTs, they are likely to be willing to unlock a significant part of such assets for the long-term, but nonetheless very valuable, benefit of charity.
	Naturally the Treasury will wish to work out what the cost to the Exchequer is likely to be over time. Funds currently placed in charitable remainder trusts in the USA exceed $100 billion—say £60 billion—but this is after the scheme has been available for some 35 years. They grew slowly at first. The idea would presumably take a few years to catch on here. If one makes a broad estimate, based on the relative sizes of the UK and US economies—ours is roughly one-sixth the size of theirs—in time total funds via charitable remainder trusts might reach £10 billion.
	Some revenue would clearly be forgone by the Exchequer from the initial tax credit and from the Treasury's "hope" of some large CGT payments not protected by tax planning. These should not be exaggerated, as they would probably have been reduced by other legitimate tax-planning measures. As I said, the income for the settlors and hence the income tax yields for the Treasury are likely to be enhanced and certainly received early. But I do not wish to make any case on spurious figures. I simply say that any tax forgone is likely to be very small against the overall capital figure of, say, an extra £10 billion finding its way to charity, and very small indeed against annual government income tax receipts, which in the past financial year totalled some £123 billion or, over 20 years, £2.5 trillion. An infusion of moneys to charity on this scale would surely be extremely welcome. Many of those charities, as the Government well know, carry out tasks and meet needs that might otherwise fall to government.
	A further practical and philosophical benefit is the close interest that settlors of charitable remainder trusts often take in the charities of their choice—in other words, those charities that will ultimately benefit from the remainder fund. They show this in both voluntary effort and often in additional giving through ordinary gift-aided methods.
	It is certainly Conservative philosophy to seek to promote and enhance the role of the charitable and voluntary sectors, and I believe it is an area that the present Government also think important.
	I hope that the 10 weeks' notice of this short debate has enabled those helping the Minister to locate and dust off the files. Serious talks were held by the Institute for Philanthropy with the Government in October 2001, just four years ago, when John Whiting, three United States tax lawyers and a representative of the Rockefeller Foundation were all over here and met both Paul Boateng, then Chief Secretary to the Treasury, and the Chancellor himself, who showed close interest for the best part of two hours—for which we are most grateful. Since then charity tax officials have explored the matter and raised what they saw as some potential problems. We believe that these have been adequately and sensibly answered. We are certainly prepared to answer further questions and to give further explanation if necessary, but we do not think that there ought to be any serious cause for deep concern about tax drainage.
	I therefore urge on the Government that the time has now come to implement charitable remainder trusts in Britain, to the advantage of the generously minded citizen and the very large potential benefit to charity.

Baroness Cumberlege: My Lords, I thank my noble and learned friend Lord Lyell of Markyate for initiating the debate and for his clear introduction of the subject. I give him my full support in his quest for charitable remainder trusts.
	Like so many Members of your Lordships' House, I am engaged in several charities. Charities deliver a huge number of services and on the whole deliver them very efficiently. Taking a charity such as Tomorrow's People, every pound spent by it is one and a half times more efficient at getting people into long-term employment than through the statutory services.
	Cancer Research UK is the largest cancer charity in the world. We are bigger than any in the United States, but we need to generate £1 million every day of the year. We work steadfastly to beat this dread disease, increasing the chances of survival, prolonging time in remission and enhancing the number of cures.
	At Chailey Heritage School, a Sussex charity, we have to generate £3.5 million a year to educate and care for the most severely physically and mentally disabled children. Despite their profound disabilities, we help to release their hidden talents, add to their skills and enhance their quality of life.
	At St George's Medical School, we have raised just under £1 million in three years to turn a very grotty student reception and recreation area into a place of pride for future doctors who will cure, treat and care world-wide. That is a pretty diverse group of charities but they all have something very much in common. They all have to attract cash from the big philanthropic trusts, without which none of them could continue.
	As a nation we have set up the National Lottery to provide for those efficient and effective charities. But, sadly, I am afraid that, like a honey pot, it has proved irresistible to the Government's sticky fingers. Charities rely on the generous public who give not only money, but also their time. There are 20 million people now involved in charitable work. They choose those charities which they see as important and those to which they want to give.
	The Government have organised a good precedent in their creation of city academies. The donors are involved not only in taking a close interest in the school, but in keeping a close watch on their generosity, seeing that their money is well spent. But, of course, city academies are for the very rich and not many of us have such wealth. But we give of our time, we are interested and we put effort into fund raising. In fact, I do not think that I have got a friend left. They see me coming along the street and they cross over.
	We talk so much about the health service being "patient led", about schools being "pupil orientated", about people "standing on their own feet" and being "given information so as to come to correct decisions". But these are mere government-generated clichés, which too often extol the virtue of doing what is on the current political agenda.
	We must credit the people who have worked hard throughout their lives—people who have made decisions and have exercised initiatives—and who have generated albeit modest rewards. Surely, it is reasonable to suppose that they will know and care where their money will be best used, having spent time and energy to work with and for a charity during their life-time.
	The Home Secretary recently stated:
	"We have a vision of a society where voluntary activity flourishes (and where all are enabled to play a full part in civil society). To this end, the Government is determined to do all it can to make it as easy as possible for those who want to contribute to do so, and to help develop a culture in which charitable giving is a natural part of everyone's life".
	Charitable remainder trusts will help to do just that. Does the Minister agree with that? Will he seek to influence the Chancellor and the Treasury to introduce CRTs, thereby helping Mr Clarke to turn his vision into a reality? He would be hugely popular, so would Mr Clarke and Mr Brown. That is a strong motivation for any government.

Lord Phillips of Sudbury: My Lords, I thank the noble and learned Lord, Lord Lyell of Markyate, for introducing this important short debate. I also thank the Institute for Philanthropy. I should add the name of the Lifetime Legacies Coalition, which has done so much to highlight the importance of this subject and to advocate the virtues of the proposal. I am sorry that we are not going to have the wisdom of the noble and learned Lord, Lord Browne-Wilkinson, tonight, but at least we know that he is listening in to our deliberations.
	I should declare my own interests as a partner of Bates, Wells and Braithwaite, which acts for quite a number of the charities and bodies that are part of the Lifetime Legacies Coalition. Also, as trustee of various charities and chancellor of the University of Essex, I was particularly sympathetic to the remarks of the two noble Lords who spoke latterly.
	The noble and learned Lord, Lord Lyell, set out the case clearly. He spoke of America, where £110 billion has apparently been given under this scheme. He spoke of the 3 million British people who have free assets at a level where they might well take advantage of the proposed reform. He convinced me that there was little or no revenue disadvantage to allowing the proposal. He said the tax problems were superable.
	The noble Baroness, Lady Cumberlege, gave us the example of the city academies that might benefit from this proposal and emphasised the incentive to be generous. The noble Lord, Lord Best, usefully concentrated on the issue of abuse, because with tax reform abuse is always, rightly, the first consideration of a government. From what he said, and from what I know, there is no reason to suppose that there would be substantial abuse here. I add my own small thought: one might well give the remainder charity the right to appoint a trustee during the lifetime of the settlor donor, which would be a direct way of ensuring that there was no abuse.
	The noble Lord, Lord Hodgson of Astley Abbotts, reminded us of the debates during the passage of the Charities Bill, in which he and I were only too involved; he is right that this measure would be slap bang in the middle of the Government's own stated ambitions for charity. The noble Lord, Lord May of Oxford, with his great experience of both Harvard and Oxford, was right to talk about the need for a culture change and the possible benign impact of this reform upon that. I could not agree more with him. One has to take into account the fact that we have the bizarre situation of a declining level of giving in terms of the real wealth of the nation, and the even more bizarre fact that the top 10 per cent of earners give less as a proportion of their income than the bottom 10 per cent. We need to break out of this frankly not very flattering culture. In his contribution, the noble Lord, Lord Neill of Bladen, agreed with what the noble Lord, Lord May, had said.
	I will add only a couple of thoughts. First, accelerating the prospect of significant generosity has a number of effects that are not obvious. I speak now as a long-in-the-tooth solicitor who has often seen old people who have lost their confidence and their sense of independence, are becoming enfeebled, whether intellectually or physically, and are losing the spirit of generosity which, if it had been allowed to express itself earlier, would have led, I have no doubt, to bold gift-making. These trusts allow just that. One has to acknowledge the reality that people who live in an extremely materialist and competitive world and give away a lot of money want these days to feel that they get some esteem or recognition for it. We might all wish that we were purer in our motives, but that is the reality. A man of 50, allowed by this proposal to give a major gift to a named institution, would expect, and would get, esteem and recognition, as well as—dare I say it—an involvement with the charity so benefited. That is amazingly infectious. I find clients who have been generous are always delightfully surprised at how much the connection then means.
	Secondly, to allow this reform would be a coping stone for the tax reforms that have been bipartisan in this country. It would be enlightened self-interest for the Treasury, for every pound given to charity is geared up immensely by the volunteer effort that always comes in behind it.

Lord McKenzie of Luton: My Lords, I add my welcome to the opportunity to debate this matter this evening and to thank the noble and learned Lord, Lord Lyell, for providing it. In doing so, I respectfully remind your Lordships' House that primacy on issues of taxation rests with the other place. That is ultimately where these matters will have to be settled.
	The Treasury and HMRC have had extensive discussions with voluntary sector representatives and professional advisers who have advocated the introduction of tax relief for gifts made through charitable remainder trusts. This Government are committed to a strong voluntary and community sector. Encouraging individuals to give to charity is just one aspect of that commitment and we have a number of measures in place to support charitable giving.
	Since the introduction of the Getting Britain Giving package in 2000, the range of tax reliefs for giving is broad and generous. Gift aid was improved in 2000 to apply to donations of money, whatever the amount. Individuals who are UK taxpayers can authorise the charity to reclaim income tax at the basic rate on their donations. If the donor is a higher-rate taxpayer, the donor can reclaim the remaining tax on his next self-assessment return. The growth in the use of gift aid has made a real difference to charities. In 2000–01, £222 million was repaid to charities in gift aid donations. In 2004–05, this figure had grown to £625 million. Higher-rate taxpayers reclaimed £150 million in 2004–05 on their gift aid donations.
	Payroll giving enables employees to give through the payroll and to get tax relief up front. In 2004–05, £83 million was given in this way, and many charities value the regular income stream that payroll giving provides. Since 2000, income tax and corporation tax relief has been available for gifts of quoted shares and securities and, in 2002, relief for gifts of land and buildings was added. Gifts to charity of money or assets are exempt from capital gains tax and inheritance tax. With such a range of reliefs, is there a need for any more?
	There is considerable scope for the existing reliefs to be more widely used. Research for HMRC demonstrated a low level of awareness of the existing tax reliefs. The Charities Aid Foundation said that only around a third of donations are made through gift aid and that this could be increased to 60 per cent. The noble Baroness, Lady Noakes, made that point. Payroll giving is offered by only around 2 per cent of employers.
	This Government are playing their part in encouraging the use of the tax reliefs for giving. We provided most of the funding for the Giving Campaign, which raised awareness among charities of the reliefs and provided toolkits to support them. In January 2005, the Home Office launched a scheme to encourage small and medium-sized employers which have fewer than 500 staff to offer payroll giving. So far, the number of SMEs offering payroll giving has increased from 901 to more than 2,100.
	With so much more to achieve through the current reliefs, we need to consider very carefully whether any new relief would bring about additional giving and whether that additional giving would outweigh the costs involved. Charitable remainder trusts are complex vehicles for most donors and charities to understand, and it is not clear that there is a market for such a method of giving in the UK.
	Another question we must ask is how important tax relief is in encouraging charitable giving. The decision to give to charity is influenced by all sorts of factors. Tax relief is just one and, for many individuals, it is not decisive. Motivation for giving is influenced by a range of factors, such as commitment to the cause or religious beliefs. Research by the National Council for Voluntary Organisations and the Charities Aid Foundation tells us that gender and regional variations in levels of giving exist. Research for HMRC shows that, where donors know about the reliefs, those reliefs do not influence greatly the decision whether to give or how much to give.
	So would a relief for giving through charitable remainder trusts make a difference? Those who are campaigning in support of the proposal cite the success of these vehicles in the US. The noble Lords, Lord May and Lord Neill, spoke about that matter. We need to be sure that the evidence shows that CRTs have boosted giving by the wealthy rather than just facilitated it. We know that reducing tax liabilities are a state duty in the US and a prime motive, as witnessed by the marketing material. The culture of giving in this country and the tax system are quite different and we need to be careful not to draw too many parallels. I understand that a charitable remainder trust may give a charity a degree of certainty that a legacy does not—wills are often challenged or changed—but how many people will be prepared to make an irrevocable gift into such a trust and would these be the very people who would leave legacies to charity in their wills anyway?
	These are complex vehicles that might bring additional costs to donors, charities and HMRC. The noble Baroness, Lady Noakes, made reference to that. I took the opportunity to look at the website of the Institute for Philanthropy and went through the opinion provided by James Kessler QC on what the outline of a trust might look like and the sort of issues that cropped up which would have to be addressed. Would it be directed only at individuals? Were there any restrictions on residents or domiciles? Who specifies the charities? How long could the non-charitable period last? What about the income that arises to the trust? Would there be a difference in providing an income that would come out ordinarily from what the trust generated or an annuity? What happened if the arrangement was for higher-than-market yields—would that be permitted?
	The inheritance tax relief would have to cater for different circumstances, whether it was just the settlor who had the interest in possession or somebody else. What gifts should get income tax relief? Would it just be cash, land, shares, securities or works of art? How is the income tax relief to be calculated? Is there to be a minimum level of the reversionary interest? How can the income tax relief be used? Can it be carried forward, back, set against gains or just income? What about the anti-avoidance rules that are already in place in relation to gifts of qualifying investments? There are more measures. I do not say that technically these could not be dealt with, but it would clearly be a complex process.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Avebury, speaks with great passion on an issue he feels strongly about and I always listen with great care to what he says in your Lordships' House and beyond. We simply disagree on the outcome and purpose of this part of the legislation. The primary purpose of Clause 52 is to make it crystal clear in statute that terrorists are excluded from asylum by virtue of Article 1F(c) of the 1951 Geneva Convention on the Status of Refugees. There is no disagreement between us on how that was developed to make clear that terrorists were excluded.
	The question the noble Lord raises is about how we have tried to do that. We are not seeking to make 146 other states think again. We are simply saying that in the context of this legislation we think it right and proper to put this provision in the Bill. Of course I take seriously what the UNHCR London office has said to us. There has been a further exchange of letters at official level. There were meetings with officials of the UNHCR before Christmas. The noble Lord will know that contact and dialogue continues with the UNHCR, but we disagree with certain elements it raises. We do so having looked carefully at the UN Security Council resolutions and the interpretation placed on aspects of the convention.
	The amendment would remove subsection (1) from the clause which clarifies that acts of committing, preparing or instigating terrorism and acts of encouraging when inducing others to do so constitute,
	"acts contrary to the purposes and principles of the United Nations"
	within the meaning of Article 1F(c). The second amendment removes the definition of "terrorism" from the clause. I will try to address each in turn.
	As I have indicated, Article 1F(c) has long been interpreted by the courts and by the UN Security Council resolutions as allowing for the exclusion of terrorists from asylum. It is not explicit within the wording. We think that in the light of the heightened threat from terrorism that this country now faces, it is appropriate to legislate to provide statutory backing to the accepted practice that terrorist should not be afforded the protection of the refugee convention. I do not accept that it is inappropriate for Parliament to legislate to interpret specific provisions into domestic law.
	As noble Lords are aware, it has already been done on a number of occasions. In Section 34 of the Anti-terrorism, Crime and Security Act 2001, we clarified that no balancing test should be applied when deciding whether to exclude an individual from the refugee convention on the basis of Article 1F or to remove the protection of the convention from them by virtue of Article 33 of Section 2.
	I turn to Amendment No. 47 on the definition of "terrorism". I think that I made the Government's position as clear as I could in Committee. Parliament legislated to define "terrorism" in the 2000 Act and we believe it is appropriate to reflect the definition of the national Parliament within this clause. It must be drawn sufficiently widely to cover all the conduct we would wish to capture.
	The definition of "terrorism" in our domestic law is compatible with those accepted in other fora; for example, the definition in the European Union framework decision on combating terrorism. We have been clear, however, that we will continue to look at our approach to defining Article 1F(c) in the refugee convention in the light of developments in the Terrorism Bill. Noble Lords—the noble Lord, Lord Avebury, in particular—will be fully aware that we have asked the noble Lord, Lord Carlile of Berriew, to conduct an independent review of our definition of terrorism and report back within a year of commencement of the new Terrorism Act. If Parliament decides in the light of that review that changes to the existing definition are needed, we would commit to bringing forward this change if parliamentary time allowed and would reflect the new definition in Clause 52 of this Bill as necessary.
	As I said in Committee, the Government think it appropriate to take the matter forward in the way I have stated for the reasons I have given. We believe that it is compatible with what we wish to do. We make the commitments I have given already as regards the review of the noble Lord, Lord Carlile. I hope that the noble Lord feels reassured and able to withdraw the amendment.

Lord Dholakia: My Lords, I wish to speak to government Amendment No. 48, which inserts a new clause after Clause 52. It replaces the other provision in Clause 52 and also repeals and replaces Section 33 of the Anti-terrorism, Crime and Security Act 2001. Section 33 applied only in national security cases considered serious enough that they should be heard before the Special Immigration Appeals Commission—SIAC. The new clause will apply similar provisions to asylum appeals which do not meet this level of seriousness.
	It is no good the Government seeking to justify this clause by referring to cases raising serious national security concerns. Those cases undoubtedly will go to SIAC. Under Section 97 of the Nationality, Immigration and Asylum Act 2002, cases are sent to SIAC if the Secretary of State, acting in person, certifies that the decision appealed was taken wholly or partly on the basis that the person's exclusion or removal from the United Kingdom would be in the interests of national security, or in the interests of the relationship between the United Kingdom and another country; or where the decision was taken on the basis of information that in the opinion of the Secretary of State should not be made public in the interests of national security, in the interests of the relationship with the United Kingdom and another country or otherwise in the public interest—maybe the interest of national security.
	What examples can the Minister give of the people at whom this clause is aimed, since it is not aimed at those who raise national security concerns? How can the Minister justify using a procedure previously reserved for national security cases in such cases? My noble friend Lord Avebury raised the information supplied by the UNHCR. It has provided detailed criticism of the way in which the Government have interpreted Article 1F in the clause, which makes clear that the use of the definition of terrorism in the 2001 Act is a misinterpretation of that article. It notes:
	"the assertion in Security Council resolutions that an act is "terrorist" in nature would not by itself suffice to warrant the application of Article 1F(c), especially, as there remains no universally accepted legal definition at the international level".
	In UNHCR's view, only
	"persons who are in positions of power in their countries or in State-like entities",
	And,
	"in exceptional circumstances, the leaders of organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security"
	are persons who could act contrary to the principles and purpose of the United Nations and fall within 1F(c). So, the clarity is already there. Article 1F(c) envisages acts of such a nature as to impinge on the international plane in terms of gravity, international impact and implications for international peace and security.
	The Government attempt to justify the new clause by reference to Security Council resolutions, as the Minister did both in Committee and in her letter of January 2006 to the House of Lords Constitution Committee, but we do not believe that that stands up to argument. In Committee in the House of Commons, the Minister of State noted that there had been 32 exclusions under the whole of Article 1F in 2004. He accepted that they could not point to any cases where the absence of the clause had led to a person being recognised as a refugee who should not have been so recognised. Such a case is not going to be found among the cases that do not pose sufficient threat to warrant their going to SIAC, and thus the justification for the new clause appears weak.
	There are two other issues. In paragraph 179 of its third report, the Joint Committee on Human Rights said:
	"To give effect to the Government's stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of 'terrorism'"—
	in Section 1 of the Terrorism Act 2000—
	"and the published list of unacceptable behaviours in its present form".
	Secondly, the House of Lords Constitution Committee, in the letter of 13 December, said:
	"We share the view of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party."
	In response, the Government cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of "particular serious crime" under Article 33(2) of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999.
	All that is at odds with the convention's objective and purposes. Moreover, it runs counter to the longstanding understandings developed through state practice over many years regarding the interpretation and application of Article 33. We see no good reason for including Clause 52 in the Bill and very good reasons for not doing so.

Baroness Ashton of Upholland: My Lords, I begin with the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay. I stand by everything that I said in Committee and reiterate it. That will be done on a case-by-case basis. It is clear to all of us that if there is compulsion or coercion, we are not dealing with a terrorist. In the case of child soldiers, that could not be clearer. I hope that noble Lords will take that as an absolute certainty—the Government will look very carefully, case by case. Where a child has been coerced by any means, they could not conceivably be a terrorist and we will act on that basis. I want to be as clear as I possibly can on that. I am very grateful to the noble Baroness and the noble Lord for raising what is an important issue in that context.
	The purpose of my amendment was to try to bring together what we saw as two bits of legislation that were rubbing along each other in an inappropriate way. I know that the noble Lord, Lord Dholakia, is concerned that the Government's amendment slightly expands what is in Section 33 of the 2001 Act. We seek through the amendment to ensure that there is a certification procedure for appeals involving all exclusion cases. We are trying to ensure proper safeguards in all such cases and, in a sense, to try to tidy up the statute book. That is not quite consolidation in the way that the noble Lord, Lord Avebury, seeks, which we have already addressed during the passage of the Bill, but we are trying to tidy it up.
	On the particular question raised by the noble Lord—that the UNHCR's paper suggested that it appears that only those who have been in power in a state or a state-like entity, for argument's sake, are capable of committing such acts—it is clear that in the case of KK v Immigration Appeals Tribunal, that was rejected. The tribunal stated:
	"owing at least partly to the growth of terrorist activity, it is now accepted by almost everybody that the meaning of Article 1F(c) is not so confined . . . we are perfectly content to hold that a private individual may be guilty of an act contrary to the purposes and principles of the United Nations, and we see no difficulty in reading the words in this way . . . we should have some difficulty in confining 1(F)(c) to individuals who control States".
	That is a clear indication of how we have sought to address questions about Clause 52, interpretation and the dialogue that we have with UNHCR in London. That dialogue continues. We seek to ensure that it is fully aware of what we seek to do and why, but there are areas in which we have a fundamentally different view. I cite that as an example where we have looked carefully to interpret who is covered.
	I do not really know what else I can say to the noble Lord, Lord Dholakia. We disagree. It said in my briefing that there should be part of our proposals that the Liberal Democrats, in particular, would like—not least the removal of the judicial ouster, which I thought would be dear to the noble Lord's heart, but it is clearly not dear enough. The purpose of this group of amendments is to try to make the legislation work more effectively. I hope that, reflecting on that, the noble Lord will be able to withdraw his amendment.

Lord Avebury: My Lords, I am most grateful for that small correction, which I spotted this morning after the Marshalled List appeared. We accept the correction that the Lord Chairman described.
	We welcome the Government's Amendment No. 58, to remove "4B", which will have the effect of allowing British overseas citizens with no other nationality to retain their right to register by entitlement and not to have to pass a good character test. The amendments that we are discussing seek to do the same for other groups: babies under 12 months, Gibraltarians, children and others. In the case of any of the groups covered, it is not appropriate to restore in secondary legislation rights that are being removed in primary legislation, when Parliament can simply refrain from taking their rights away in this Bill.
	Clause 55 extends the statutory requirement that an applicant must be of "good character" in granting British citizenship to all cases, save those where British citizenship is granted because of the UK's ratification of the UN Convention on the Reduction of Statelessness. "Good character" takes in matters far beyond terrorism, as I know from experience of discretionary applications for British citizenship, where minor discrepancies in filling in the form are on occasion treated as evidence of untrustworthiness. A rejected applicant has no way of contesting the decision, because he is not given the reasons. The clause extends far beyond what is necessary to counter a terrorist threat. We should avoid creating new bureaucratic barriers to citizenship where there is no evidence of need.
	Other than birth, a person can only acquire British citizenship by either registration or naturalisation. Up to now, the "good character" requirement has applied only to those seeking naturalisation as a British citizen and not to those seeking to register as British. The process of registration is either discretionary or by entitlement. Clause 55 applies the "good character" requirement to both, as well as to naturalisation, thus ending the practise of registration by entitlement, a category named as such in statute, in recognition of special obligations to allow certain categories of person to become British in this way.
	The government amendment to leave out "4B" demonstrates that the specific groups losing their rights to register by entitlement are tightly defined in the clause. When it was pointed out to the Minister that, as drafted, the clause would subject babies to a good character test, she said:
	"Concern has been expressed that we would extend the rule to very young children or even babies—that was raised with me yesterday. Of course, the rules would state that that would be a silly thing to do, and it would not happen".—[Official Report, 19/1/06; col. GC 279.]
	If it is "silly" to include a particular group, then why first include that group within the scope of the Bill and then knock them out again by administrative decision—in guidance still to be drafted by officials—when Parliament itself has the opportunity not to allow silly laws to get on to the statute book in the first place.
	In Amendments Nos. 56, 61 and 65 we remove the subjection of babies under 12 months to a good character test. Section 3(2) of the British Nationality Act 1981 entitles babies born outside the UK to a British parent who is British by descent—that is, who does not automatically pass on their British citizenship to their children—to be registered within 12 months of birth. Section 17(2) makes similar provision in respect of British Overseas Territories. Article 6 of the Hong Kong (British Nationality) Order 1986 is entitled "Provisions for reducing statelessness". Article 6(3) says:
	"A person born stateless on or after 1st July 1997 outside the dependent territories shall be entitled, on an application for his registration as a British overseas citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in paragraph (4) below are fulfilled in the case of either that person's father or his mother".
	Thus, our amendments concern not only babies, but stateless babies. To include these babies in the Bill is not merely "silly", but it risks making people stateless. It is a simple matter to take them out in the way suggested.
	The second group of amendments removes the subjection of children to a good character test—Amendments Nos. 55, 57, 60 and 62. I apologise again for the minor error that crept into Amendment No. 55, which I fortunately spotted in the Marshalled List this morning. Section 1(3) of the British Nationality Act 1981 allows children, and only children, to register if their parents become British citizens or are granted settlement—indefinite leave to remain—in the UK. Section 15(3) makes similar provision for British Overseas Territories citizens.
	Section 3(5) makes provision for children, and only children, born outside the UK to a British parent who is British by descent and thus cannot automatically pass on their nationality to their child to be registered, if the family has returned to the UK and has lived here for at least three years. The equivalent provision for British Overseas Territories is Section 17(5). Should a child be put to the risk of losing an entitlement to register as British simply because he or she might fail a good character test? These amendments solve that problem and retain their right to register by entitlement.
	A growing group of children who will come under Section 1(3) are the children of refugees. When refugees got indefinite leave to remain as a result of recognition, their children were British because they were born to parents settled—that is, with indefinite leave to remain—in the UK. The decision to give refugees five years' limited leave in the first instance means that their children will not be British by birth and will not be entitled to register until their parents get indefinite leave to remain at the end of five years. This places refugee children in a situation of particular difficulty, as refugees are barred, for good reason, from approaching the embassies or government of their former country. In the more distant past, when refugees used to get four years' limited leave before getting ILR, children born to them in those years were in travel and citizenship limbo. If the parents had refugee convention travel documents, it was sometimes possible to get the child included, but most families had to remain in the UK throughout the whole four years. Will the Minister give an assurance that the Secretary of State will exercise his discretion to register the children of recognised refugees who are not yet able themselves to register by entitlement?
	Amendment No. 59 deals with British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties. Section 5 of the BNA 1981 provides an entitlement to register for British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties—usually they are Gibraltarians. We believe that depriving these people of their entitlement to register breaches Community law. Parliament should not allow that to be done in an Act of Parliament, whatever the Government may say about correcting it later by administrative provisions.
	Amendment No. 63 leaves out paragraph (c) of Clause 55(2) and restores the entitlement to register of wives and widows of those who fought in the defence of Hong Kong during World War II. There are hardly any of these people left alive and they probably do not want to come to Britain anyway, but those who do remain are elderly. To take away their rights unnecessarily is disrespectful and insensitive.
	Finally, Amendment No. 64 deals with British nationals other than British citizens, Hong Kong residents and the prevention of statelessness. Section 1 of the British Nationality (Hong Kong) Act concerns Hong Kong residents whose entitlement to register derives from their having a "second class" British citizenship and being, on 4 February 1997, stateless but for that citizenship, and who have not since renounced any other citizenship. We shall have a further opportunity to discuss that in a few moments. To amend the Bill to allow these people to register by entitlement would be in line with the government's amendment to leave out Section 4B. I beg to move.

Lord Avebury: My Lords, this new clause removes anomalies in the British Nationality (Hong Kong) Act 1997. Subsection (2) of the new clause deals with the problem of otherwise stateless British nationals overseas who were not ordinary resident in Hong Kong on 4 February 1997. The exclusion of persons who were not ordinary resident on the qualifying date is intentional, because the purpose was to benefit only those British nationals who had demonstrated their commitment to Hong Kong by maintaining ordinary residence in the territory. However, in the Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B in the 1981 Act, otherwise stateless British nationals were given a right to register as British citizens, as long as they were solely British, irrespective of where they were resident.
	This created an inconsistency. A former Hong Kong British Dependent Territory citizen, who was otherwise stateless but registered to become a British national overseas, will never have a right to become a British citizen if he was not resident in Hong Kong on 4 February 1997, whereas a former Hong Kong BDTC who is otherwise stateless but simply failed to register as a BNO will have been automatically granted BOC status under Article 6(1) of the Hong Kong (British Nationality) Order 1986. As is the case with other BOCs, BPPs and BSs, holding one of the latter categories of British nationality gives an entitlement to register as a British citizen under Section 4B of the 1981 Act.
	By removing the ordinary residence requirement, the proposed new clause would allow a person from the Hong Kong ethnic minority who was solely British on the qualifying date, 4 February 1997, to register as a British citizen, thus equalising his position with that of those who benefited from Section 4B. That is an argument of fairness.
	Subsection (3) covers persons who were minors on the qualifying date—primarily from Hong Kong's Asian ethnic minorities—and have hitherto been treated as failing to satisfy the test in Section 1, but who have at least one parent who registered successfully under the 1997 Act. The provisions of that Act have resulted in an injustice and created a number of split families in the ethnic minority community in Hong Kong. In all cases where the parent was born, naturalised or registered as a British national in Hong Kong, the child born to such parents after they registered under the 1997 Act would automatically become a British citizen by descent, whereas a child born before the 1997 Act has no entitlement to become a British citizen. Those children, some of whom are now adults, are left in a position where they are now de facto stateless.
	A discretionary registration concession was made in 1992 to remedy split families. It resulted from the provisions of the British Nationality (Hong Kong) Act 1990, as referred to obliquely in an Answer to my noble friend Lord Lester by the noble Lord, Lord Bassam, on 31 January 2000 at column WA 7 of the Official Report. Subsection (3) of my proposed new clause would extend a similar registration entitlement to remedy the split families which have resulted from the British Nationality (Hong Kong) Act 1997 and rectify the position of a small number of British nationals in Hong Kong who are presently de facto stateless. The concession is important. It takes into account the special circumstances of the ethnic minorities in Hong Kong and is consistent with the commitments that we made to this group in the run-up to the hand-over to China in 1997. It would apply to a small, closely defined group whose only nationality is British. The amendment contains adequate provisions to prevent abuse; namely, that either the father or mother of the applicant must have qualified under the 1997 Act; that the applicant must be solely British on the date of the application; and that the person must have been a minor immediately before 4 February 1997 or born before the hand-over.
	After I tabled this amendment, a new Annex H to Chapter 14 of the Home Office Nationality Instructions appeared on the IND website, which I saw for the first time yesterday evening. This acknowledged at last—I had been trying to persuade the Home Office of it since October 2004 in literally dozens of Questions and at a meeting with the previous Minister, Des Brown, on 2 February 2004—that Indian minors who were registered as BN(O)s in Hong Kong forfeited their previously held Indian citizenship and were therefore entitled to register as British citizens. The delay arose after the Government sent a note verbale to the Indian authorities which asked them to clarify the meaning of their citizenship law, because at the time when BN(O) status was invented, they had said that the person concerned would retain their Indian citizenship, not clearly understanding that BN(O) status could be obtained only by registration and not by birth. We had said all along that this would be the answer. Since the applications by these people for registration as British citizens are now admitted to have been wrongfully refused, I hope that the Minister will assure me that arrangements have been made to grant the claims without requiring the applicants to make further submissions, because the refusals were unlawful and therefore void, as provided in paragraph 6.8.3 of the nationality instructions. It would be outrageous if these people, having been deprived of their rights since 1997 or 1998, were now to be charged another £250. Subsection (3) of the proposed new clause may no longer be necessary as a result of this development.
	Considering that Ministers have inadvertently misled Parliament since 27 October 2004 by stating repeatedly that Indian minors who acquired British nationality by registration did not lose their Indian citizenship, will the Minister tell me when a statement will be made which corrects these misunderstandings as provided by standing orders? I beg to move.

Baroness Ashton of Upholland: My Lords, I shall begin with the substantive issue and move on to the question that the noble Lord rightly raised. As the noble Lord indicated, the 1997 Act created an exception to the general rule at the time that British citizenship should be available only to those with a close connection to the United Kingdom. That was due to the particular concerns about those people's post-1997 future in Hong Kong. It was considered appropriate to extend eligibility to those in the territory who had former British nationality and who otherwise would have been stateless. The provisions of the Act are directed very precisely at this group. We see no case for extending the class of persons eligible for British citizenship under the Act given the guiding principle that British citizenship should normally be restricted to those having close connections with present day British territory, which Hong Kong is not, and the absence of any indication that conditions for non-Chinese residents in Hong Kong have deteriorated since handover in 1997 or that the non-British children of British citizens there face a particularly uncertain future, such as might justify a further exception to the principle in paragraph (a). I am not taken by the substantive amendment that the noble Lord has put forward.
	On the particular point that the noble Lord raised in relation to Indian citizenship, he has been proven to be precisely right. He has received a letter today from my honourable friend Mr McNulty who outlined the steps that the Home Office proposes to take to bring this development to the attention of those affected. A press notice is being issued in Hong Kong. As the noble Lord said, details are being posted on the websites of the British consulate general there and of the IND directorate in the UK, to which the noble Lord referred last night. I want to be clear that this is not about the Government misleading Parliament in any deliberate way. I know that that is not what the noble Lord suggested. Officials have held lengthy conversations and discussions with their Indian counterparts.
	The noble Lord, Lord Avebury, will know that this issue came to my attention only when he raised it in one of our discussions between Committee and Report of the Bill. It was clear that at that point we were waiting to get a definitive response from the Indian Government, which it was right and proper for us to do. I live in the anticipation that my speaking to the noble Lord in this open way will suffice rather than a statement from the Government, but the noble Lord will have to make up his own mind about that and press the matter if he wishes. I know that he is going to bring out the Companion as he has already indicated that it gives clear and strong advice on the issue. Of course, I shall convey that point to my colleagues in the Home Office to see what they wish to do, but I hope that, whatever they decide to do, the noble Lord will accept that, procedurally, we have followed an appropriate course, which was to wait for the Indian Government to give us a definitive response and then to act with as much speed as we possibly could, and we have done that.
	When requested to do so, the Home Office will reconsider applications for British citizenship that were refused on the basis of the advice that we received from the Indian Government in 1997–98. I do not have an answer today to the cost question that the noble Lord raised. I will ensure that I write to him on that. He referred specifically to those who had already paid money. As I say, I do not have an answer to that at this point. I hope that, given our speedy response on the websites, what we are seeking to do with the British consulate general and the fact that my honourable friend wrote immediately to the noble Lord to recognise the position, he will consider that, although it may have taken some time, the Government, having got the definitive advice—it was right and proper to do so—acted accordingly. But on the substantive point, the noble Lord will understand that I hope he will feel able to withdraw the amendment.

Lord Avebury: My Lords, I am most grateful to the noble Baroness. As she said, I was thumbing through the Companion while she was speaking. I refer her particularly to paragraph 4.72(2), which states:
	"It is of paramount importance that Ministers should give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity".

Lord Avebury: My Lords, the British Nationality Act 1981 equalised the right of a child born overseas to parents, one of whom was British, whether that parent was the mother or the father. In either case, the child, born after 7 February 1961, could be registered as a British citizen by the parents up to the age of 18, but if the mother was British and the father was foreign they could not do so. That position was corrected in the 2002 Act.
	We argued that there was still discrimination, in that if the child's right was derived from his father, he could be registered as a British citizen because of his ancestral connection, irrespective of whether it was done on his behalf by his parents when he was a minor, or by himself as an adult. In the 2002 Bill Committee stage the Government accepted the case in principle, tabling their own amendment on Report, which is now Section 4C of the British Nationality Act 1981.
	The problem with that solution was the cut-off date, which led to a situation where children born after 7 February 1961 were entitled to British citizenship, while children born before that date had no rights. There are several cases where siblings in the same family are divided in that way into sheep and goats. For instance, Michael Turberville, who has given me permission to quote his case, and who is the chairman of CAMPAIGNS, the NGO that promotes the rights of the 1981 Act orphans—so to speak—now has British citizenship because he was born in 1967, but none of his elder brothers and sisters qualified: David, born in 1945; Freda, born in 1946; Sandra, born in 1949; Maryann, born in 1952, and Philip, born in 1957. Mr Turberville says that about 150 members of his organisation are excluded from British citizenship by the cut-off date.
	One mother whose family is affected, Mrs Constance Salgado, who lives in Colombia, had children on either side of the cut-off date and is seeking to formulate a complaint against the UK under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.
	But the Government, knowing that they would otherwise have been in breach of an international obligation, entered a reservation to CEDAW allowing them to discriminate in nationality law.
	The only reason that was given by the noble Lord, Lord Filkin, for turning down the proposal the last time that I raised it was:
	"One can only go so far back in seeking to right the wrongs of history and of previous generations".—[Official Report, 31/10/02; col. 298.]
	To remove discrimination in our nationality law that affects only a small number of people still alive and nobody from any previous generation is surely something that any listening Minister should accept. This Minister went a little further than the noble Lord, Lord Filkin, when she explained in a discussion that we had that—I am paraphrasing what she said—although it is agreed that very few children born abroad to British mothers and foreign fathers would benefit from the removal of the cut-off date and therefore it would have no implications for immigration policy, there could be repercussions in the drafting rules that apply to all statutes. My first reaction was that we could achieve the same end result without tampering with the time limit through the formulation in the first of the amendments. Then I realised that in many cases all the children in the family could have been born before the cut-off date, and the purpose of the second amendment is to move the date back so that all but the very old would be covered. Mr Turberville tells me that all the members of his CAMPAIGNS group would be included if the cut-off date was moved, as I suggest, back to 1931.
	Common sense tells us that most of the children born between 1931 and 1961 who would be able to register under the amendment would not bother, since they have held another citizenship for the past 44 years. However small the number affected, this is worth doing to eliminate what I hope is the only remaining piece of sex discrimination in our nationality law and to enable us to rescind our reservation to the CEDAW and its optional protocol. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord is extremely tenacious in the way in which he deals with issues. I can always rely on him to come up with another solution. Before I start on this, I want to say something further in the interests of telling the noble Lord as quickly as I possibly can about the issues that he raised in the last group, although I am sure that I am breaking all kinds of procedure. This is to do with those people that the Indian Government have now given a different status. On the record, I say that there will be no further charge and mere notification will be sufficient. I think that the noble Lord and Members of your Lordships' House would want to hear that immediately. I have just had that advice, and I am very grateful to my officials for doing that so speedily.
	Having made the noble Lord happy on one thing, I am now going to take away his happiness—I know that the noble Lord will not be surprised by that. I am grateful to him for talking this through with me on a number of occasions. I have heard a number of times as a Minister that, "it will only affect a small number of people". The noble Lord is of course correct on that. When you look across all of government policy, not least in this area which is quite complicated and important to try to get right, there are lots of potential issues where only a small number of people might be affected and where the noble Lord, in looking back on the amendments that we have already discussed and some that we may discuss on Third Reading, might say that only a small number of people are affected so therefore why on earth should the Government hold back on giving in.
	The reasons are various. I think that the noble Lord had a hand in the decision to make the date 1961 in the first place. It is also important to recognise, as my noble friend Lord Filkin said, that we cannot undo everything that went before. As a woman, I can think of lots of legislation that I would like to go back over, going back several hundred years—and I suspect that the noble Baroness, Lady Anelay, could think of some too—that might still have some resonance for us today. There is a principle about people getting their citizenship as individuals and not because they happen to be related to someone else as adults. It is different with children; we have had a lot of discussions about children and the noble Lord knows that I am concerned that we keep that under review. As adults and real grown-ups—because they are pre-1961 so they are nearly as grown up as me—they are able to think about their entitlement as an individual and not just because they happen to have a connection with a sibling.
	Although the noble Lord has tried to be very ingenious, as ever, in the way that he has approached this, I am going to resist it on the basis both that we cannot simply move policy around on the grounds that it only affects a few people, and that we have made a substantive approach to try to redress a problem, which was sexism and nothing else as far as I am concerned, in the right way. It is one that the noble Lord had a very strong hand in.
	I cannot move any further when I fundamentally believe that, as grown-ups and adults, not merely as siblings, people should consider their own position in that context.
	I know that that disappoints the noble Lord. He knows how much I try, particularly at this time of night, not to disappoint him, but I fear that I must do so on this occasion.

Lord Hylton: My Lords, I was mildly encouraged when I noticed that the Minister had two or three supporters behind her; but they have somehow melted away. She will now understand why I said to her in an earlier conversation that we would need two days for Report stage on this controversial, complex and difficult Bill.
	This is a simple and, I hope, straightforward humanitarian amendment. The UNHCR has for a long time defined the kinds of asylum applicants that the commissioner considers to be vulnerable. These include the elderly, torture survivors, children, women who have suffered rape or who are pregnant, and people with serious health needs. Such conditions are made worse when those affected speak and understand little English. Bail for Immigration Detainees is a small English charity. In one year, it was approached by some 1,100 detainees, many of whom were in the conditions that I mentioned.
	In May 2005, Médecins Sans Frontières reported on 13 adults and three children, all with health needs. Their detention lasted from 40 to 270 days, with an average of 250. The report commented on the apparent lack of means to secure appropriate medical care and protection. In February 2005, Save the Children estimated that 2,000 children are detained with their families each year. Studies of 32 cases showed that children can and do remain in detention for long periods.
	I hope that I have said enough to show that health and vulnerability are urgent problems that are often overlooked. My amendment offers a way of preventing harm and unnecessary suffering. There should be a thorough medical check before vulnerable people are locked up. If the Government believe that some vulnerable people will abscond if they are not detained, surely some combination of reporting and tagging could be devised to meet a few exceptional cases.
	As more people are expected to be detained each year from now on, health cases are likely to multiply, making my amendment still more necessary.
	The amendment is intentionally limited to asylum applicants and, in particular, to those whose cases have not yet been determined. Perhaps it should go a little further—I do not know. As it originates from the direction of the UNHCR and as two of your Lordships with very considerable medical experience—the noble Lords, Lord Rea and Lord McColl of Dulwich, although they are not in the Chamber—have expressed to me support for it, I hope that it will commend itself to the Government. I beg to move.

Baroness Anelay of St Johns: My Lords, I shall break my silence for the past half hour, although at this hour I shall be brief. I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. He always challenges the House on humanitarian issues by bringing forward amendments that make us reconsider previous positions that we have taken on policy, which is very important. He is very—I am trying to find a polite word—clever at finding ways of doing it that are within the correct rules of the Bill. The amendment is certainly well founded.
	To be picky, I find it difficult to know how the amendment might be properly applied. For example, if I were an independent medical practitioner and I were asked to certify that detention would not harm someone's mental or physical health, I would wonder for how long into the future I would have to provide that certification. Normally, a medical practitioner would certify the condition of a person only at that moment. We do not know how long a person may be held in detention. As the noble Lord has said on many occasions, detention should not take place anyway; if it does, it should be as brief as possible. I see that the noble Lord wishes to rise. This is Report stage, so I shall be brief. That is the situation if I were being picky. I know that he is trying to raise the threshold of how we approach people in the vulnerable group.
	Vulnerable people who may be taken into detention—perhaps children or people who are vulnerable for other reasons—may be part of a family group. If one is a medical practitioner, one is then in the unenviable position of certifying the vulnerable person as someone who should not be subject to detention. What then happens to the remainder of the family group? Are they split up? I suspect that the noble Lord, Lord Hylton, would say that none of them should be in detention. These are very difficult questions that any government would have to address.
	It is important that amendments like this give us the opportunity to consider the arguments put forward by the Bail for Immigration Detainees organisation, which is excellent in its briefing. The amendment also gives us the chance to ask the Government tonight to explain what the current condition is and what systems are in place to provide the protections that the noble Lord, Lord Hylton, asks for. It would then be up to individual Members of the House to decide whether they think that the Government have shown there is sufficient protection to make it possible for us to reject the noble Lord's amendment or whether it needs to be considered further at Third Reading. I know that the noble Lord, Lord Hylton, is a master at refining amendments for Third Reading and I do not believe that the new rules on Third Reading will hold any fear for him at all.

Lord Dholakia: My Lords, I support this amendment. The noble Baroness, Lady Anelay, was right when she referred to the period of detention that would affect mental or physical health. I have been aware of a substantial number of cases—the Medical Foundation for the Care of Victims of Torture has a record of them—that clearly explains the effect of detention on children. To my mind, children should not be in detention, full stop. It is important to recognise that there are cases which can give us a direction on this particular matter. It is right and proper that the attention of the Government is drawn by the noble Lord, Lord Hylton, to these particular practices.

Lord Hylton: My Lords, this amendment is tabled by way of a further probe to obtain firmer assurances than we were given in Grand Committee and in the Minister's letter to me of 31 January. It adds a further section to the 1999 Act. We want to know beyond all doubt that no one is detained unnecessarily or unreasonably. Apart from issues of personal liberty and innocence, it costs more than £800 to detain a person for one week. We want to be certain that every detainee knows of the possibility of bail and gets bail if he qualifies for it. We seek assurances that there will be effective consideration initially and at monthly intervals of the need for detention and of its continuing reasonableness.
	I underline the seriousness of these matters by pointing out that there were seven self-inflicted deaths in detention between January 2003 and September 2005. Detainees feel powerless and desperate. A government must take account of the following important guidelines and convention points. I mention in particular Article 5(4) of the European Convention on Human Rights; the UNHCR's guidelines on criteria for detention of asylum seekers dated 1999; Guarantee 3 of the UN Working Group on Arbitrary Detention; and, finally, the Council of Europe's 20 guidelines on forced return of May 2005. All of these call for challenges and reviews of detention to be heard by a court.
	If the Government do not pay attention to these documents, they will be wide open to criticism of the kind already made by Mr Gil-Robles, the Council of Europe's Commissioner for Human Rights, in June 2005. He pointed out that, in December 2004, 55 people had been detained for more than one year and that 90 were detained for between six months and one year. He recommended judicial review in all cases exceeding three months, with free legal aid. I beg to move.

The Earl of Listowel: My Lords, I rise to support the amendment and to highlight the particular concerns for mothers with young children. Most children of mothers in Yarl's Wood centre are under three years of age. When mothers are anxious, it impinges very significantly on the child's life. If they do not have access to legal support and if—this point was made by a governor of such an institution—the Immigration Service does not have people going in to keep those people who are detained for removal informed of how their case progresses, that is very disquieting for those people. They have no knowledge of what is going on. They do not know how their case is proceeding.
	Anne Owers gave evidence to Sub-Committee F of the European Union Committee in its inquiry and report into returns. Her first concern was about the lack of legal representation. Joined with that was the complete lack of information about progress with detainees' cases. This causes disquiet to all these people but for mothers with young children we must be very concerned. I support the amendment

Baroness Anelay of St Johns: My Lords, I have surprised the noble Baroness by having something to say again. We return to a very serious issue, which the noble Lord, Lord Hylton, raised in a rather different form in Grand Committee. Certainly, he has very cleverly crafted this amendment to move the debate on further. One of the issues in Grand Committee that I was certainly concerned about was that we would be looking at an amendment to set up a system of review which was simply unsustainable because of the cost and complexity of how the persons were being asked to look at individual cases on a regular basis.
	I fully support the noble Lord's objective underlying the amendment—and that is the usual weasel way of saying, "but I don't support the amendment itself". I support most of what he has in the amendment. I think that he has tried very effectively to address the objections in Grand Committee. In Committee we were all agreed, including the Minister, that what was important was that people should be aware of their right to make a bail application. The difficulty then was how should they be made aware of it? What is the proper way that should happen? The noble Lord, Lord Hylton, has sought refuge in the idea of having a legal aid system through the Legal Services Commission. I shall be interested to hear what the Minister has to say about to the Government's proposals. The noble Lord, Lord Avebury, referred in passing to that.
	It is important that the Government put on the record what their thoughts are about making people aware. How often does one make somebody aware on the basis that, if someone is taken into detention, it could be when he is unable to think clearly, as I am at this stage of the night? Perhaps you have been under duress before you have got into that situation. You are certainly worried about your family who might be with you in detention. You may not be capable of taking in what is very clear information given at the time.
	How often should there be a duty on anyone running a detention centre to make somebody aware of what facilities are available to them for making a bail application? What kind of facilities within the centre should be made available; for example, meeting rooms, the ability to meet quietly and not under threat—perhaps not under threat from other people who are in that detention centre as well. One has to be aware that detention centres are not always the most pleasant place to be, from the point of view of different groups who may—I was trying to avoid this phrase, but cannot think of another which serves as well—gang up against each other.
	Throughout it all, this is the real question: is the situation that currently pertains satisfactory? We have all agreed, at least on the Opposition Benches, that it is not. How do we move it forward? It will not be by adopting wholesale the amendment of the noble Lord, Lord Hylton. Yet we need to look at its constituent parts, for he is trying to achieve the right results. It is a case of how the Government can assure us that those objectives are to be met, and how quickly. With the best will in the world, there is a huge churn of people going through detention, yet a residual number are always there far too long. As the noble Earl, Lord Listowel, said, we have to be particularly worried about families with young children, and we know that there are mothers at Yarl's Wood with very young children.
	Throughout all of this, I have maintained that I am no bleeding heart for people who have made unfounded applications and simply keep on appealing, trying to hang on here for as long as they can. However, I always have sympathy with the children, because whatever faults the parents may have, it is never the children's fault.

Baroness Ashton of Upholland: Hear hear, my Lords, to the final remarks made by the noble Baroness on children. I knew that we will be coming on to discuss them in our final group of amendments, and rightly so.
	To begin with, we all share a desire to ensure that detainees can get competent legal advice and representation and that they understand their bail rights and their rights to challenge the lawfulness of their detention. I apply that to all sides of your Lordships' House; so, the principle is, in a sense, agreed. We are merely trying to work out the best way to do it within limited resources—I make no bones about that—and within the most efficient and effective use of those resources. As the noble Baroness, Lady Anelay, rightly said, the noble Lord, Lord Hylton, has moved the debate on from the previous amendments in Committee, to try to focus further on those issues.
	Part of that, as I sought to address in Committee, is to try to ensure that when people arrive in detention they get information about bail—that.it is readily available to them and includes copies of the bail handbook produced by Bail for Immigration Detainees, which has been referred to. They should also be given information about how to contact the Immigration Advisory Service to get free legal advice and representation. So we seek to give them information when they arrive, in writing and verbally, and to provide them with advice on bail and legal representation at the same time. That is an important part of what happens to everyone going into detention.
	To pick up on what was said by the noble Baroness, Lady Anelay, about people often arriving in strange circumstances and, perhaps, not being able to deal with those issues as readily or as fully as they might, we seek to make that advice available throughout the process of detention and to make sure that they know about the issue of their representation throughout that process. The IND is producing another information pack for detainees, which will cover a range of different issues pertinent to their circumstances. It will include bail rights and processes and be available in a way which recognises the language differences between detainees. That is an ongoing process, which tries to give information to people throughout.
	I am not taken with the idea of the duty representative scheme for all detainees being used in this area. However, I want to highlight something which may give the noble Lord, Lord Hylton, some comfort. As noble Lords may recognise, we have a pilot running at present that will be evaluated by the Legal Services Commission in June. It is to have on-site advice surgeries for any detainees who do not have an adviser. As the noble Lord, Lord Avebury, knows well, that is being piloted at Campsfield, Colnbrook, Dover, Harmondsworth, Tinsley House and Yarl's Wood removal centres.
	I can tell your Lordships that, if it is successful, we shall consider whether we can extend it to all centres. Perhaps the noble Lord would agree that if that works, that goes 95 per cent, if not all the way to addressing his principle. I cannot promise that it will be rolled out, because I do not know what the evaluation will say, so I should be wrong to do that; but I can say that it is a very good example. Those advice surgeries provide the right kind of support for those in detention. They address the underlying question posed by the noble Lord: making sure that people get ongoing, systematic advice that enables them to take up the opportunity of bail if that is appropriate. I hope that that will convince him that we have taken the issue seriously.
	I accept that serious issues need to be addressed here, but have already said that we want to do so in a sensible, targeted way. The combination of provision of support and advice that we already have, plus the opportunity that the pilot will give us, will address the noble Lord's concern, so I hope that he will feel able to withdraw his amendment.

Baroness Ashton of Upholland: My Lords, I am always grateful to the noble Earl, Lord Listowel, for his contributions on children. I have two senses of déjà vu, if I might be slightly frivolous. The first is the number of times the noble Earl has asked the House to forgive him for what are, as the noble Baroness, Lady Anelay, said, issues of critical importance, for which we would forgive him for ever for raising. That is one of his roles in life and we are grateful for it. Secondly, as the noble Earl has indicated, it was I who piloted—if that is the word—the Children's Bill to become the Children's Act 2004.
	My noble friend Lord Adonis was indeed here. He had no idea which amendment we were on. He is very busy with other issues. Had he known, I am sure that he would have stayed—he takes his responsibilities, which the noble Lord, Lord Hylton raised, extremely seriously and I know that he will read our conversations with interest.
	I do not want to detain the House longer than I need to, although this is important. The noble Baroness, Lady Anelay, has hit the proverbial nail on the proverbial head. I do not suppose it will surprise any noble Lord to know that, when we came to this issue in the passage of the Children's Bill, I for one was keen to see whether we could accept the amendment. The principle of ensuring that our children are safe, whoever they are, and particularly those who are vulnerable, is, I hope that the noble Earl will agree, as dear to my heart as it is to his. It is a fundamental part of what the Government do, through the work we have done in legislation, Every Child Matters, the bringing together of children's issues and so on. We have sought to make children a much more central part of the way in which we approach policy and legislation. I know that that is supported on all sides; I am not making a party political point at all in saying it. But that approach is still relatively new.
	I looked at the consequences of trying to agree to this amendment. As the noble Earl would expect, I probed them at enormous length. I remembered that, before I had had any briefing on this issue, the noble Earl and I had talked about it and had faced the tricky issue that the noble Baroness has quite rightly raised—that if you prevent people from doing what is essentially their primary purpose, or you undermine it without meaning to, that has potentially great repercussions. We discussed earlier the critical importance of ensuring that, when people should not be here, they go back and get their children settled in the community as quickly as possible. The answer is not always to be here, by any means.
	It is clear, if you look at the way this would work, that if a chief immigration officer said that he wanted to return a family of failed asylum seekers, the decision could, under the amendment, be challenged in the courts on the basis that removing their access to health and education in Britain and returning them to a country where the education and healthcare may well not be of the same standard is not consistent with the duty to make arrangements to safeguard and promote children's welfare. It is possible, legislatively, that if this were inserted it would become virtually impossible to return any family with children or any accompanied child or young person.
	I am not prepared to do that. I completely accept that we want to ensure that we support vulnerable children, but this is not the means to do so, because we would end up in a position where we could, in an odd way, make the situation worse for those children and young people and their families. To go back to the point made by the noble Baroness, Lady Anelay, about having effective Home Office policies and immigration and asylum controls, we have to have a position where, if people should not be here, be they individuals or, in this context, families, they should go. That is an important part of what we are seeking to do. As I explained to the noble Earl, Lord Howe, with whom I immensely enjoyed working on the Children's Bill—he is a man of great integrity, who I know felt strongly and passionately about these issues—that is the basis on which I have to reject this amendment. I simply cannot put our immigration services in that position. It would be wrong to do it. That does not mean that we and they do not care about the welfare of children, but we simply cannot—by accident, as it would almost be—undermine the services in that way. I do not think that the noble Earl would wish that. It would undermine what we have and what we are seeking to do.
	The noble Earl knows too that I will do anything that I can to try to support his objectives of making sure that vulnerable children are adequately protected and looked after, but this is simply not the way to do it for the reasons that I have given. I hope that the noble Earl will feel able, on that basis, to withdraw the amendment.

The Earl of Listowel: I am grateful to my noble friend Lord Hylton, the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Dholakia, as well as to noble Lords who have spoken in support of the amendment or at least expressed their sympathy with its intent. The Minister too expressed sympathy with its intent, but deep concern about its impact in practice.
	The Minister gave a helpful and generous response, and I shall study it carefully. Since the previous Bill in 2004, we now have a new Home Secretary. Perhaps circumstances have changed to some extent.

The Earl of Listowel: My Lords, I note what the Minister says. The Home Office seems somehow to trump every other department around it. I may be unfair and wrong in my observation, but that seems to have happened in the past.
	I encourage the Minister not to give up all hope of looking again at this problem and how such arrangements might work in practice. As I said only last week, the relevant court looked at an approach for judicial review under Section 9 of the power to make families destitute to encourage them to return to their home countries. It found that the immigration service was acting within its remit in doing so. Perhaps that gives some comfort to the Minister.
	Perhaps a compromise is possible before Third Reading. As the noble Lord, Lord Dholakia, said, the Government could look at the different arms of the immigration service as it deals with children and families. Perhaps one arm could be brought under Section 11, with a sunset clause applying after two years. One could at least see how it worked and whether the consequences would be as grave as the Minister clearly fears. There would be an opportunity to evaluate that pilot scheme, just as there has been a very useful evaluation of Section 9 in the previous Bill.
	I know that we all wish to work in the best interests of children. The danger arises when a system becomes unthinking because it is driven towards a particular target. I am seeking to encourage that system to think more carefully about children as it moves towards its necessary target. It is a little like doing a maths and showing the working. That is what I am asking: I want to see the working behind the system. I think of the league tables in schools. There has been so much concern to set down a clear target for pupil achievement, but the softer targets of including, and working with, the more vulnerable children are harder to deliver. The Government have introduced value-added elements to the system to balance it. I am asking for more balance in this area and a proportionate response which achieves the aims of the Government—which we all wish—but does so in a humane way. I again thank the Minister for her response. I beg leave to withdraw the amendment.